HMOs have asserted that physicians who treat patients in the hospital with a presumed emergency must accept whatever they are offered by any HMO as full compensation. They argued in court that the EMTALA rules mandate that patients who think they may have an emergency must be evaluated. They theorized that there is then an implied contract between any insurance plan and the treating physicians. Since there is an implied contract there is no need for an explicit contract; thus physicians must be satisfied with whatever they get from insurance companies and cannot bill patients.

Although this seems nothing short of silly to you and me, the Department of Managed Health Care and the governor shared this hallucination. The California Appelate Court, however, did not. The court ruled that there is no contract between an insurance plan and a physician unless there is a signed document to prove it. Thus the physician retains the right to bill a patient for services rendered. Not willing to be beaten, the Department of Managed Health Care asked the California Supreme Court to review the case, and the court has agreed.

At the same time, under pressure from health plans, and likely with an eye on winning votes, the governor issued an emergency executive order immediately banning the right of noncontracted physicians to bill patients for emergency services. The nature of the emergency was a mystery. Physicians would have to accept whatever they received from patients’ insurance as full reimbursement, but could file a grievance with an as yet unnamed agency. The political rhetoric concluded that this was done to protect patients from predatory billing practices of physicians who charge fees that exceed Medi-Cal and Medicare rates.

The governor advised the public that if they have purchased health insurance, they should not have to worry about paying for emergency care. This problem should be handled by the physician and the insurance company, and the patient should not be stuck in the middle. The fact that the patient is actually the one who picks the insurance plan that does not provide reasonable benefits for emergency services seems irrelevant to the governor. This order has the effect of shifting power and dollars from those who provide care to those who provide insurance.

There was no attempt to create a fair grievance procedure for physicians; nor was there any attempt to regulate insurance profits or quality of benefits offered by insurance companies or at-risk medical groups. Our state’s emergency care system is seriously fragile now, and this shift of funds away from caregivers could be the tipping point of its collapse.

In response to this emergency measure, the CMA took an immediate stance. It pointed out that there was no emergency, unless insurance companies needing higher profits is an emergency. It stated that this order was a declaration of war against physicians. The governor was, I believe, shocked by the severity of the response and rescinded his order 24 hours after it was issued. According to sources at the American College of Emergency Physicians, the reason for rescinding the order was that the governor did not realize that the Department of Managed Health Care was not prepared to offer an alternative to balance billing, which would ensure fair payment of our claims, that is, an up and running independent dispute resolution program.

Anyone who believes this is naïve. The real reason was the immediate and firm stance by the CMA. This issue will not go away soon. It is imperative that physicians organize. Ask your colleagues to come and join us in what appears to be a frontal attack on the basic rights of physicians.