By Christina Cousart
Updated June 24, 2019
During the 2019 legislative session, states have continued to advance protections for consumers against surprise medical balance bills – charges for unexpected, out-of-network medical care. To date, four new states have enacted multi-pronged policies that prohibit balance bills, institute a process for providers and carriers to resolve billing disputes, and foster pricing transparency between providers, carriers, and consumers to avoid situations that lead to balance bills. Texas also approved legislation strengthening its existing consumer protections. Here are highlights of the new legislation.
|Colorado (HB 1174)||Nevada (AB 469)||New Mexico (SB 337)||Texas (SB 1264; HB 2041)||Washington (HB 1065)|
|Balance billing protections|
|Holds consumers harmless||✓||✓||✓||✓*||✓|
Prohibition in case of emergencies
Prohibition in case of out-of-network (OON) services delivered at an in-network facility
Applicable providers/ facilities
|Person who is licensed or otherwise authorized in the state to furnish health care services including:
● LaboratoryExcludes ambulance providers, but charges the insurance commissioner with setting payment methods for ambulance services.
|Physician or other health care practitioner who is licensed or otherwise authorized in this state to furnish any health care service; and institutions providing health care services including:
● Surgical centers for ambulatory patients
● Skilled nursing facilities
● Residential facilities for groups
● LaboratoriesEmergency facilities include hospitals or independent centers for emergency medical care
|Licensed health care professionals, hospitals, or other facilities licensed to furnish health care.Facilities include entities providing health care services including:
● Ambulatory surgical centers;
● Birth centers;
● Drug and alcohol treatment centers;
● Laboratory, diagnostic, and testing centers;
● Health provider’s offices or clinics
● Urgent care centers
● Freestanding emergency rooms
● Therapeutic health care settings
|Individual licensed under the laws of this state to practice medicine or health care facilities.Facilities include:
● Licensed ambulatory surgical centers
● Licensed chemical dependency treatment facility
● Renal dialysis facilities
● Birthing centers;
● Rural health clinics;
● Federally qualified health centers
● Freestanding imaging centers;
● Freestanding emergency medical care facilities*
|Person licensed under state law to practice health or health-related services, or an employee or agent of such a person acting in the scope of their employment.Facilities include:
● Rural health care facilities
● Psychiatric hospitals
● Nursing homes
● Community mental health center
● Kidney disease treatment centers
● Ambulatory diagnostic treatment or surgical facilities
● Drug and alcohol treatment facilities;
● Home health agencies.Carriers may not balance bill in the case of emergency services delivered by out-of-state providers.
|Billing dispute and resolution procedures|
|Reimbursement standard||For emergency services the greater of:
● In non-Denver areas:
o 105% of carrier’s median in-network rate for services provided at a similar facility in the same geographic area; or
o Median in-network rate for the same service at a similar facility in the same geographic area based on all-payer claims database (APCD) data.
● In the Denver area:
o Carrier’s median in-network rate for the same service in a similar facility in the same geographic area;
o 250% Medicare rate for the same service in a similar facility in the same geographic area; or
o Median in-network rate for the same service in a similar facility in the same geographic area based on APCD data.
For OON services at an in-network facility, the greater of:
● 108% of the previously contracted rate if the facility had been in-network within the last 12 months.● 115% of the previously contracted rate if the facility had been in-network within the last 12-24 months.● If no such contract existed, an amount the carrier determines to be fair and reasonable.For providers:If a provider had been in-network within the past 12 months:
● The previously contracted rate, if the provider terminated the contract before it was set to expire without cause;
● 108% of the previously contracted rate if the provider terminated the contract for cause;
● A fair and reasonable amount, determined by the carrier, if the carrier terminated the contract for cause;
● The previously contracted rate adjusted by the Consumer Price Index, Medical Care Component for the prior year, if neither party terminated the contract.If a provider had not been in-network in the preceding 12 months, carrier may remit whatever payment it determines.
|A 60th percentile of the allowed commercial reimbursement rate for the service performed by a provider in a similar specialty in the same geographic area.
Should not be less than 150% of 2017 Medicare rate.
A stakeholder group will convene annually to review the reimbursement rate.
|The usual and customary rate or an agreed-to rate, meaning the allowable amount as described by the applicable master benefit plan document or policy.*||Commercially reasonable amount based on similar services provided in a similar geographic area.|
|Process for arbitration||Baseball arbitration (arbiter will pick the final payment offer submitted by either the health plan or the provider/facility), if carrier and provider do not agree to initial payment.
Arbiter will consider:
|Arbiter will either require the provider to accept the payment issued by the carrier as payment in full, or to demand that the carrier remit an additional amount requested by the provider.||Mediation may be requested through the Department of Insurance.
In the case of mediation of facilities, the mediator shall determine if the amount charged by provider is excessive, and if the amount paid by the insurer is unreasonably low or not the usual and customary rate.
In the case of mediation for other providers, the mediator shall take into account whether there is gross disparity between the amount charged by the provider and how much the provider or similarly qualified providers receive for similar services. Other factors may include:*
|Baseball arbitration (arbiter will pick the final payment offer submitted by either the health plan or the provider/facility), if carrier and provider do not agree to initial payment.
Arbiter may consider:
|Data collection and reporting tools||State APCD||Benchmarking database maintained by a nonprofit organization specified by the insurance commissioner.
Enables the commissioner to require carriers to report:
|The insurance commissioner is charged with selecting an organization to maintain a benchmarking database.||Requires state APCD to establish a dataset that provider, facilities, and carrier s may use to determine reasonable rates and to resolve payment disputes.
Carriers shall provide information concerning the utilization of OON providers and cost savings yielded from the law as part of their annual rate filing.
|Provider must refund excess payments made by consumers
|Penalty for violations||✓||✓||✓*||✓|
|Must provide disclosure of potential repercussions of OON services
|● Providers||● Carriers
|Requires cost estimates to consumers
|Additional requirements:||On carriers:
● Must arrange for patient transfer within 24 hours of receiving notice that person is stable and can be transferred.On providers:
● Must send notice to carrier, no later than eight hours after person presents at an OON facility
● Must send notice to carrier that the beneficiary has stabilized and may be transferred to an in-network facility within 24 hours of stabilization
● Must make claims status information available to providers.On providers:
● Must post in a publicly accessible manner and online information about which carriers it contracts with.
● Must notify the carrier of a beneficiary’s admission within a reasonable period after stabilization.
● Any communication regarding bills, shall clearly state that the beneficiary is responsible only for in-network cost sharing amounts.
● Explanation of benefits must include information about balance billing protections; the total amount the provider may bill the enrollee under the enrollee’s health benefit plan; and an itemization of cost-sharing included in that total.* 
● Facilities must post notice that
o it may charge a facility fee
o it may charge rates comparable to a hospital emergency room
o the facility or a physician at the facility may be OON and bill separately
o Lists all the carriers it contracts with
● Facilities must provide patients with a disclosure that:*
o Lists the facility fees that may result from the visit
o Lists the carriers the facility is in-network with
o Lists other cost information such as median facility fees and observation fees.
● Prohibits facilities from using logos or language to misrepresent that it might be in an insurers network.
● Must immediately arrange for an alternate plan of treatment if an agreement on post-stabilization services cannot be reached with the emergency provider.
● Must update provider directory within 30 days after the addition or termination of a provider.On providers:
● The provider must contact the carrier within 30 minutes of stabilization before rendering further services.
● Must post online information about which carriers it contracts with.
● Must provide carriers with updated lists of non-employed providers working at the facility
*Indicates changes made by the new Texas law.
 Texas’ 2019 law amends and enhances already existing protections in the state. Changes made by the new law are noted by asterisk.
 Does not apply when: 1) Services are received at a critical access hospital; 2) A person is covered by insurance sold outside of the state; 3) Services provided more than 24 hours after notification has been provided and a person has been stabilized.
 In the case of a beneficiary who cannot reasonably access a preferred provider, the protections extend to 1) medical screening and examinations require to determine if a medical emergency exists; 2) necessary emergency services to treat and stabilize; 3) services originating in an emergency facility following stabilization; and 4) supplies related to the services rendered by that facility.
 Does not apply if the consumer affirmatively consented to receive OON services.
 Only applies when; 1) A participating provider is unavailable; 2) Medically necessary care is unavailable in the beneficiary’s network (determined by the provider in conjunction with the health plan); or 3) the patient did not consent to receive services from the OON provider.
 Does not apply in the case of a beneficiary that elects, in writing and in advance, to receive services from the out-of-network provider, or in the case that the provider does provide the enrollee with a written disclosure that they are out-of-network and provides an estimate of the projected amount the enrollee will be responsible for. Explicitly includes protections for OON services delivered by diagnostic imaging or labs.
 Prior law allowed mediation requests only in the case of claims over $500 and that were for either emergency services, or services rendered by a provider or supplier at an in-network facility.
 Refund must be issued within 60 days, or interest will accrue.
 Refund must be issued within 45 days, or interest will accrue.
 Refund must be issued within 30 days, or interest will accrue.
 Punished by a fine of not more than one thousand dollars, or by imprisonment in the county jail for not more than one year, or both.
 Insurance superintendent may impose a fine on any provider that offers an unlawful rebate or inducement to entice a person to seek OON services
 The Attorney General may bring civil action against entities that exhibit a pattern of repeatedly violating billing protections. Authorizes applicable agencies to take action against providers or facilities who violate billing protections. The Secretary of State may suspend or revoke a license, or bring civil action against entities who violate the disclosure requirements outlined under Texas law. The Department of Health may impose penalties up to $1,000 for certain violations.
 Authorizes the Department of Health or an appropriate authority to levy fines against providers or facilities who violate these policies. Commissioner may levy a fine against carriers who violate these policies. Repeated violation may constitute unprofessional conduct and risk licensure of a provider or facility.
 If an OON provider has advanced notice that the beneficiary is OON, they must notice the beneficiary of their OON status and recommend the beneficiary contact their carrier to discuss options.
 A provider must issue a cost estimate within three days if requested by a patient.
 Carrier must provide an estimate of out-of-pocket costs for OON services upon request.
 Applicable to Health Maintenance Organizations.
As Congress and the Trump Administration propose strategies to address surprise balance billing – charges for unexpected, out-of-network medical care – states have significant experience in implementing surprise billing laws that can inform the discussion. Importantly, state authority cannot protect individuals covered by self-insured plans, which are pre-empted by Employee Retirement Income Security Act (ERISA,) from state oversight. To extend protections to consumers covered by these plans federal action is needed either through mandated protections or a change in law to enable states’ laws to apply toward ERISA plans.
States’ approaches to addressing surprise balance bills vary in how they:
- Define what services are covered by these protections;
- Address how reimbursement for services should be resolved; and
- Define provider and insurer transparency requirements.
Through National Academy for State Health Policy’s (NASHP) work with states, it has identified the following themes and lessons from state laws and experiences that could help inform future federal action on surprise balance bills.
Broadly define services covered by the law.
Balance billing protections are strongest when they extend to both all emergency circumstances and situations where the consumer does not have control over the out-of-network (OON) services provided. Such situations can occur without consent of the patient when an in-network physician is unavailable, because of an unforeseen medical situation, and/or because of a direct referral to an OON provider or facility rendered by an in-network provider. Surprise balance billing laws that include provisions to extend protections broadly across multiple provider and facility types, including specialists, labs, imaging centers, and air and land ambulance transport, offer the strongest consumer protections.
Consider multiple factors when determining the law’s dispute resolution process.
Essentially, state laws take two approaches to resolve billing disputes for surprise balance bills – setting a specific reimbursement rate for such bills and/or defining an arbitration process through which providers and insurers can resolve payment disputes. Because many state balance billing laws are nascent — and have been implemented during a time of considerable policy change affecting health care markets — there is a lack of evidence identifying the ultimate effects, either positive or negative, of either approach on state health insurance markets, including their impact on premium costs and provider network composition. Both approaches have challenges. Setting reimbursement rates for balance bills can be challenging given the multiple stakeholders involved and there is time and expense to consider in establishing fair mediation or arbitration systems. Whatever strategy Congress adopts, states’ experiences suggests the following factors for consideration:
- Remove consumers from billing disputes. To maximize consumer protection from surprise balance bills, the process for resolving reimbursements should be kept between the insurer, the provider, and any agency appointed to aid in resolution. To encourage this, additional requirements may be put in place to foster direct communication between providers and insurers, such as a requirement that insurers alert providers about what, if any, ability they will have to balance bill for services rendered to the insurer’s beneficiary. (For example, multiple states require insurers to include this information in their Explanation of Benefits sent to providers.)
- Use of data sources that leverage claims data. By using this data, such as that collected by all-payer claims databases (APCDs), reference price amounts for negotiations for medical bills will be based on actual paid amounts, rather than billed amounts. The latter may lead to inflated rates and higher health care spending. However, not all states have APCDs. Including funding to support state APCD programs could be an impetus to improve access to needed claims data in every state. To assure the most robust data collection, however, requires Congressional action to amend ERISA or provide other means for states to mandate the collection of claims data from self-funded plans. The Supreme Court’s ruling in Gobeille v. Liberty Mutual currently prohibits such requirements. While states do encourage voluntary reporting with some success, a mandate would assure more consistency in reporting. One of the issues identified in the Gobeille decision was the burden on self-funded plans created by different reporting requirements in different states. Including reference to the common data layout developed by states would resolve that reporting burden question.
- Inadvertent effects on provider networks and contracts. The ultimate reimbursement rates paid to resolve surprise balance bills should provide sufficient compensation to providers, without incentivizing providers to stay OON. For example, a benchmark that provides payments set too high may incent providers to remain OON. However, payments set too low may impose negative impacts on providers already operating on the margins. To protect against the latter, reimbursement calculations may consider a variety of factors, including average payment amounts for similar services, geographic cost variation, provider experience, or other factors unique to the situation of the service performed.
- Set a fixed amount for consumer cost sharing. This added protection will guard consumers from potentially exorbitant out-of-pocket costs in the case that final reimbursement rate decisions on a balance bill result in large out-of-pocket cost-sharing for services from deductibles, coinsurance, etc.
Include prohibitions on billing practice and hold harmless protections.
The most protective strategy would be an explicit prohibition on the part of providers or insurers from balance billing patients. While this should absolve consumers from the surprise billing burden, the law should also be clear in holding consumers harmless in situations where a balance bill is being negotiated between insurers and providers. This may take the form of specifying what form of contact, if any, insurers and providers may take with consumers regarding billing disputes and prohibiting certain actions, like credit reporting, against consumers.
Encourage enforcement through federal penalties.
Because of their limited jurisdiction over providers and certain health plans, enforcing surprise billing protections has been a challenge for some states. A successful federal law would include an enforcement mechanism that would support additional compliance with surprise balance billing laws.
Include deference to existing state laws.
States, including those with robust balance billing protections, have taken very different approaches to crafting their laws. This wide variation reflects states’ diligent and deliberate work to find solutions to surprise balance billing that work best for their markets.
States’ experiences can inform Congressional proposals and deliberations to address balance billing – from requiring transparency about networks and service costs to establishing the processes to determine the reimbursement rate for an OON provider. States have acted to protect consumers, experimenting with a variety of strategies to protect consumers from unexpected financial exposure. Federal action can extend the reach of those protections to include consumers covered by self-funded, employer-based insurance, but it should consider how any new federal law will impact state progress in this important arena of consumer protection.
Surprise balance bills occur when patients receive unanticipated charges for health care services because they were unaware that care was delivered by an out-of-network provider or facility. In some cases, surprise balance bills can amount to hundreds if not thousands of dollars in medical expenses.
A growing number of states have passed or are proposing laws to protect consumers with one or more of these safeguards:
- They prohibit balance billing in certain circumstances — usually when a consumer had no other provider choice;
- They hold consumers harmless when insurance carriers and providers dispute a balance bill;
- They set reimbursement standards for providers in the case of balance bills;
- They require providers and carriers to provide accurate and updated information about the provision of in- and out-of-network services; and
- They establish a balance billing dispute resolution process, facilitated by the state or an independent entity.
This chart highlights multiple safeguards that seven states have enacted to create a comprehensive strategy to regulate surprise balance billing. To date, at least 22 states have introduced legislation during this session to establish or strengthen surprise balance billing protections. NASHP will continue to monitor and report on new legislative developments.
As health care costs and consumer out-of-pocket expenses continue to rise, states are paying increasing attention to strategies that address consumer concerns. One issue of focus is the practice of balance or “surprise billing,” the process by which patients receive higher than expected bills from providers, often the result of receiving care out-of-network. In April 2016, NASHP published a brief detailing many factors that contribute to balance billing as well as pending state legislation to address the issue.
The chart below provides an update to this brief, summarizing enacted state legislation from the 2015-16 legislative session.
|CALIFORNIA AB1305||Applies annual out-of-pocket caps on covered benefits inclusive of out-of-network emergency care received up to the point of patient stabilization.|
|CONNECTICUT SB433||Requires carriers to establish a process to ensure that beneficiaries receive benefits at in-network levels in circumstances when there is no available provider to provide covered benefits or when covered benefits cannot be provided without unreasonable travel or delay.|
|FLORIDA HB221||Requires carriers to cover emergency services delivered in licensed facilities at in-network rates. Also requires carriers to cover non-emergency services at in-network rates in circumstances where 1) the carrier has a contract with the facility to provide the services covered by the beneficiary’s plan and 2) the beneficiary does not have the ability or is not given the opportunity to choose a participating provider at the facility.Prohibits non-participating providers from billing carriers beyond the limits specified for emergency reimbursements under Florida law or from collecting any amount in excess of this from beneficiaries.|
|UTAH SB216||Prohibits balance billing of beneficiaries in circumstances where workers’ compensation insurance or self-insured employer benefits are obligated to pay medical benefits.|
|CONNECTICUT SB433||Requires carriers to disclose the process to request covered benefits from out-of-network providers in cases when the beneficiary requires specialty care or the carrier does not have a provider (or provider that can provide services without unreasonable travel or delay) with the needed specialty to treat the consumer’s condition.|
|FLORIDA HB221||Requires hospitals to post contracted carrier information on their websites and to provide notice to patients that services may be delivered by practitioners that may bill separately or that do not participate in the same insurance networks, including names and contact information for contracted providers.Requires carriers to include disclosures that limited benefits will be paid when out-of-network providers are used with any newly issued policy.|
|FLORIDA HB1175||Requires health care facilities’ websites to include an estimated average of payments received from all payers (excluding Medicaid and Medicare) for certain bundles of services. Notice must include disclosure that the costs are an estimate and actual costs may vary by patient.Facilities must inform patients and prospective patients that they may request a personalized estimate of charges. Estimates must be delivered within seven days. Facilities also must provide names and contact information for contracted providers and recommend that patients contact each practitioner who will provide services to determine if the practitioner is in-network.Requires facilities to notify patients, when applicable, that services may be delivered by a practitioner that may bill separately or may not be participating in the patient’s plan’s network.Clarifies information that should be included on a patient’s bill to better inform the patient about the purpose and specificity of charges for services received.|
|GEORGIA SB302||Requires carriers to provide reimbursement at in-network rates in circumstances when the beneficiary relied on inaccurate information contained in a carrier’s provider directory.|
|MINNESOTA HF3142||Requires carriers to pay in-network rates in circumstances where services were provided after a provider left the plan network, but before the change was updated on the carrier’s website, unless the beneficiary was otherwise altered of the network change.|
|TEXAS SB425||Requires freestanding emergency care facilities to prominently post information stating that the facility or physician providing services at the facility may not be in the beneficiary’s network and that physicians may bill separately from the medical facility.|
|GEORGIA SR974||Creates a surprise billing practices study committee to undertake a study of the conditions, needs, and issues associated with surprise bills.|
|FLORIDA HB221||Establishes a process by which carriers and providers may settle billing disputes, including a time limit during which one must respond to a settlement offer before it will automatically go into effect.|
|TEXAS SB481||Lowers the amount at which a beneficiary can request mediation of a settlement of an out-of-network claim from $1,000 to $500.|
As the newly insured use their coverage, increased scrutiny is being drawn toward the experiences of consumers who are receiving care. One issue of growing concern is the accumulation of medical debt, even among the insured. According to a recent study from the Kaiser Family Foundation, more than a quarter of adults in the United States report that, within the past year, they or someone in their household have had issues with medical debt. This includes 20 percent of individuals under the age of 65 who have insurance. Also striking, 51 percent of insured individuals noting medical debt report owing sums of over $5,000, a significant sum for many households.
The issue is especially complicated as recent fluxes in the health care industry triggered by growth and shifts in coverage are occurring in tandem with experimentation by providers and insurers to reduce costs. As the industry stabilizes, it is yet to be seen what methods of controlling costs may prove most effective at lowering those costs and improving affordability for consumers.
One factor under scrutiny is the occurrence of balance or “surprise” billing which happens when patients receive a higher than expected bill from providers, even after factoring for the amount paid by a consumer’s insurer to the provider. States are also taking action to examine the issue, managing the interests of carriers, providers, and consumers to address them. This brief examines this issue, as well as state actions and legislation currently in the queue.