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Model Legislation for Balance Billing Adopted by NCOIL

The National Conference of Insurance Legislators (NCOIL) adopted model legislation to restrict out-of-network balance billing by physicians. The stated purpose of the model-legislation is “to provide transparency, accountability, and disclosure by healthcare facilities, facility-based providers, and health benefit plans regarding billing practices, notice of network benefits, and financial responsibilities in the delivery of non-emergency medical care.” Two key provisions of the model legislation include the following:

Section 4. Facility Disclosure

A. Each healthcare facility shall develop, implement, and enforce written policies for the billing of non- emergency medical care. The policies must address:

1. the providing of a conspicuous written disclosure to a consumer at the time the consumer is first treated on a non-emergency basis at the facility, at pre-admission, or first receives non-emergency or post-stabilization services at the facility that:

(a) provides confirmation whether the facility is a participating provider under the consumer’s third-party payor coverage on the date services are to be rendered based on the information received from the consumer at the time the confirmation is provided; and

(b) informs consumers that if a facility-based provider who provides services to the consumer while the consumer is in the facility is not a participating provider with the same third-party payors as the facility, then the consumer may be billed for medical services for the amount unpaid by the consumer’s health benefit plan.

2. the requirement that a facility provide a list, on request, to a consumer to be admitted to or who is expected to receive services from the facility, that contains the name and contact information for each facility-based provider or facility-based provider group that has been granted medical staff privileges to provide medical services at the facility; and

3. if the facility operates a website that includes a listing of physicians who have been granted medical staff privileges to provide medical services at the facility, the posting on the facility’s website of a list that contains the name and contact information for each facility-based provider or facility-based provider group that has been granted medical staff privileges to provide medical services at the facility and the updating of the list in any calendar quarter in which there are any changes to the list.

Section 5. Facility-Based Provider Disclosure

A. If a facility-based provider bills a patient treated at the facility for non-emergency medical care who is covered by a health benefit plan described in Section 3 that does not have a contract with the facility-based provider, requesting payment on the balance of the provider’s charge that is not related to co-pays, coinsurance payments, or deductible payments and is not covered by the health benefits plan, the facility-based provider shall send a billing statement that:

1. contains an itemized listing of the non-emergency medical care provided along with the dates the services and supplies were provided;

2. contains a conspicuous, plain-language explanation that:

(a) the facility-based provider is not within the health plan provider network; and

(b) the health benefit plan has paid a rate, as determined by the health benefit plan, which is below the facility-based provider billed amount;

3. contains a telephone number to call to discuss the statement, provide an explanation of any acronyms, abbreviations, and numbers used on the statement, or discuss any payment issues;

4. contains a statement that the patient may call to discuss alternative payment arrangements;

5. contains a notice that the patient may file complaints with the [Insert State Medical Board] and includes the [Insert State Medical Board] mailing address and complaint telephone number; and

6. for billing statements that total an amount greater than $200, over any applicable copayments or deductibles, states, in plain language, that if the patient finalizes a payment plan agreement within 30 days of receiving the first billing statement that includes all insurance payments and reflects the final amount owed by the enrollee or six months after the receipt of medical treatment, whichever occurs first and substantially complies with the agreement, the facility-based provider may not furnish adverse information to a consumer reporting agency regarding an amount owed by the patient for the receipt of medical treatment.

B. A patient may be considered by the facility-based provider to be out of substantial compliance with the payment plan agreement if payments in compliance with the agreement have not been made for a period of 45 days.

While this is merely a model-form of legislation, a number of states have already adopted their own balance billing laws. Providers and suppliers should always be aware of their state’s laws pertaining to balance billing when billing out-of-network patients for their services.

For more information, please contact Abby Pendleton, Esq. at (248) 996-8510 or (212)734-0128 or visit the HLP website.

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