On March 6, 2011, the National Conference of Insurance Legislators (“NCOIL”) finalized model legislation intended to provide consumers with information about balance billing practices of facility-based providers. More significantly, the law would require health plans to provide enrollees with information about out-of-pocket costs of elective procedures. The law, if adopted by any state will impose requirements on facilities, facility-based providers and health benefit plans (including health insurers, managed care plans, multiple employer welfare arrangements, an entity that direct-contracts with providers on a risk-sharing basis) to inform patients about balance billing practices by facility-based providers who are out-of-network with the patient’s health plan.
Facility Requirements: The model law requires a facility to “adopt, implement and enforce” policies addressing how it will:
- notify patients whether it is participating with the patient’s insurer or plan and;
- inform patients that hospital-based physicians may not be participating with the patient’s insurer; and
- Inform patients that the patient may be balance billed by any non participating physicians.
- Provide patients on request with a list of hospital-based providers along with contact information so the patient can find out whether they participate. If the facility maintains a website, this information must be available on that site, updated at least every 3 months.
Hospital-Based Provider Requirements: The model law imposes requirements on hospital-based providers who are out-of-network with a patient’s health plan and provide non emergency services and bill the patient for amounts in addition to the coinsurance, copayment or deductible. These providers must:
- Itemize all non emergency services provided, including dates of service in the bill; and
- Include in the bill language explicitly stating that the provider is out-of-network with the patient’s insurer or plan, and that some portion of the provider’s charges were not paid by the insurer / plan; and
- Include a telephone number the patient may call for the purpose of discussing alternative payment arrangements; and
- If the balance billed amount (over and above any coinsurance, deductible or copayment) is greater than $200, inform the patient that if he or she enters into a payment agreement within the earlier of: 30 days from receiving the 1st statement that shows the balance due or within 6 months from the date of service and substantially complies with the agreement, the provider may not make an negative report to a consumer reporting agency.
Requirements for Health Plans and Insurers: Requires health plans that use provider networks to identify participating hospital-based providers in provider directories. Also requires health plans to incorporate a statement substantially similar to the following in their evidence of coverage or renewal materials and in the EOB or other description of benefits; and “conspicuously displayed” on the plan’s / insurer’s member website:
NOTICE: "IF YOU HAVE RECEIVED NON-EMERGENCY MEDICAL CARE IN A FACILITY THAT IS IN YOUR HEALTH PLAN'S NETWORK, BUT THE CARE IS DELIVERED BY A PHYSICIAN OR OTHER HEALTH CARE PROVIDER WHO IS NOT IN THAT NETWORK, YOU MAY BE RESPONSIBLE FOR PAYING SOME OR ALL OF THAT PHYSICIAN'S OR PROVIDER'S FEE THAT IS NOT COVERED BY YOUR HEALTH INSURANCE."
EOBs must also include the number for the State Insurance Department's consumer protection division for complaints regarding payment.
In addition, on request, the health plan must, within 48 hours of pre-certification, inform the member about:
- Whether a facility-based provider or other healthcare provider is a participating provider;
- Whether the proposed non-emergency care is covered by the member’s policy;
- The amount of the member's personal responsibility for copayments, deductibles; and if applicable, the amount of coinsurance that will be due based on a provider's contracted rate for in-network services or the insurer's usual and customary payment rate for out-of-network services.
The model law empowers the State Insurance Commissioner to take disciplinary action against a health plan that fails to comply. It also empowers the State Medical Board or other appropriate authority to impose administrative penalties or take disciplinary action against a facility or hospital-based provider who fails to comply.
It’s been difficult to keep up with changes being made by health reform, let alone “ordinary” non health reform changes. Somehow Marla Durben Hirsch, editor of the ABA “The Health Lawyer” manages to do it! Thanks for bringing this to my attention.
The Model Law can be read in its entirety here.
For additional resources about State regulation of balance billing, see the National Conference of State Legislators’ “State Legislation Relating to Transparency and Disclosure of Health and Hospital Charges”
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