Below is a preview of Alexandra Loprete’s upcoming article in New Jersey State Bar Association Young Lawyer’s Division Publication “Dictum”
By Alexandra Loprete
Civil Trial Attorney at O’Connor, Parsons, Lane & Noble, LLC in Springfield, New Jersey
When you get emergency care or are treated by an out-of-network provider at an in-network facility, you are now protected from “surprise billing”, sometimes called “balance billing”. The new law also protects patients from being billed for inadvertent out-of-network services (services at an in-network facility provided by out-of-network providers). “Surprise billing” is an unexpected bill for out-of-network services when the patient had no control over who was involved in their care – like when a patient has an emergency or schedules a visit at an in- network facility but is unexpectedly treated by an out-of-network provider.
When a patient receives care and treatment from a physician or other healthcare provider, they may owe certain out-of-pocket costs, such as a copayment, coinsurance, or a deductible. They may be responsible for the entire bill if they see a provider or visit a healthcare facility that isn’t in their health plan’s network. “Out-of-network” describes providers and facilities that haven’t signed a contract with the patient’s health plan. Out-of-network providers were previously permitted to bill a patient for the difference between what the plan agreed to pay and the full amount charged for a service. This is called “balance billing” but would often come as a surprise to the patient that was not aware they were receiving out-of-network services. The cost of out-of-network services are higher than in-network costs for the same service, and generally do not go towards an insured’s annual out-of-pocket limit.
Under the new law, if a patient receives out-of-network services at an in-network facility, out-of-network providers can’t bill the patient unless they give written consent to give up protections. This makes it even more important for patients to carefully read and understand any document they are asked to sign when they present to any health care provider for care and treatment. Patients should remember that they are never required to give their consent and lose protection from balance billing. Patients also cannot be required to receive out-of-network care. Patients should always be given the option to choose a provider or facility in their plan’s network. However, in the case of an emergency circumstances often do not permit a patient to make such a choice. In those circumstances, the most out-of-network providers may bill is equivalent to the plan’s in-network cost-sharing amount. This applies to several providers, including emergency medicine, anesthesia, pathology, radiology, laboratory, neonatology, assistant surgeon, hospitalist, or intensivist services. Under emergency circumstances these providers may not “balance bill” or “surprise bill” and may not ask patients to give up their legal protections in this regard. The Consolidated Appropriations Act of 2021 contains many provisions to help protect patients from surprise bills, including the No Surprises Act under title I and Transparency under title II. You can learn more by visiting www.CMS.gov and read about protections for consumers, understanding costs in advance to avoid surprise bills, and what happens when payment disagreements arise after receiving medical care.