A couple years ago, I wrote a post about balance billing from out-of-network providers in emergency situations. Then a few days ago, we got an email from a reader who wondered if anything had changed since then, as her husband had been in a car accident and the emergency department physician was out-of-network, despite the ED itself being in-network. They had paid their deductible and out-of-pocket maximum per their health insurance policy, but were receiving additional bills (ie, balance billing) from the physician.
A lot has changed with health insurance in the last two years. Indeed, the ACA did address the issue of out-of-network emergency care, but balance billing for emergency care is still legal in most states.
Under the ACA, if an insured receives emergency care in a hospital emergency department, there are specific rules that must be followed in terms of cost-sharing. The clearest explanation I’ve seen is in 45 CFR 147-138(b)(3). If you scroll down to section (b)(3), you’ll see the details, along with examples of how it works in different situations with different health plans. To sum it up, the law requires carriers to pay a reasonable amount to out-of-network providers in emergency situations (ie, no lowball payments), but the out-of-network providers are still allowed to balance bill the patient for the difference between the billed amount and the paid amount.
The regulation discusses cost-sharing, and the protections provided by the ACA in emergency situations where out-of-network providers are used, but it’s important to note that they refer specifically to copays and coinsurance – but NOT to deductibles and out-of-pocket maximums. So if you have a health insurance plan that charges a $75 copay for emergency services, that amount applies regardless of whether you’re treated at an ED that is in-network or out-of-network. Same story if your health plan charges a 20% coinsurance for emergency care. But if your health plan has an out-of-network deductible that is higher than the in-network deductible, the higher amount can be applied even in an emergency situation. And the out-of-network maximum out-of-pocket can also apply.
All of this discussion applies only in the case of true medical emergencies. Under the ACA, this is defined as a
“medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) so that a prudent layperson, who possesses an average knowledge of health and medicine, could reasonably expect the absence of immediate medical attention to result in… [serious jeopardy to the patient’s health or the health of an unborn child, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part].”
So you cannot simply go to an emergency room for any condition and call it “emergency care.” But assuming that it is a true emergency, there are some protections built into the ACA. Clearly, however, they are not all-encompassing:
- Balance billing is still permitted
- Providers are often not affiliated with the same networks as the hospital in which they work
- Deductibles and out-of-pocket maximums are excluded from the requirement that cost-sharing in emergencies be treated as in-network even if the ED is out-of-network.
But what about Colorado?
States can have more restrictive laws that prohibit balance billing in emergency cases, and several of them do (that list is from 2013, and NY also passed a similar law in 2014). Colorado is listed as “no” in terms of balance billing being prohibited, but in 2006, the state legislature passed a law requiring that patients be “held harmless” if they seek care at an in-network facility and then receive care from an out-of-network provider who works at the in-network facility.
That regulation was scheduled to sunset in 2010, and this document from 2014 indicates that it did sunset (see page 10). I found a January 2010 report from the Colorado Insurance Commissioner recommending that the regulation [CRS 10-16-704(3)] be renewed in the summer of 2010 because it was clearly beneficial for consumers, and this analysis from 2010-2011 indicates that the statute had been scheduled to sunset in 2010 but ultimately was not repealed (the discussion about Colorado starts on page 114).
But I didn’t find an updated version of CRS 10-16-704. To clear it up, I called the Division of Insurance and discussed this issue with a representative in the health and life insurance department. He confirmed that CRS 10-16-704 is still on the books and applies today. He noted that if the hospital is in-network, the out-of-network ED physician cannot balance bill the patient, but rather must work out the details of the reimbursement with the patient’s insurer.
So that should straighten things out for our reader, since her husband’s situation involved an in-network facility with an out-of-network provider. It should be noted that in Colorado, the regulation banning balance billing is not limited to emergency situations. Rather, it applies to in-network facilities where out-of-network providers are working, often unbeknownst to patients (sounds like we shouldn’t have had to pay out-of-network charges for durable medical equipment when Jay had knee surgery in 2008, but I guess that’s water under the bridge at this point).
But what about emergency care provided at an out-of-network facility (ie, no part of the treatment is in-network?) In that case, the ACA’s regulations apply, meaning that patients could still end up getting a balance bill.
In Colorado right now, some popular plans for sale in the individual market (both on and off-exchange) do not cover out-of-network care at all. One example is Colorado HealthOP’s EPO. But if you look at the plan summary, you’ll see that emergency room services are covered regardless of whether they’re in-network or not, although that particular plan doesn’t cover emergency medical transportation if it’s out-of-network. The ACA requires all health plans to cover emergency care “without regard to whether the healthcare provider furnishing the emergency services is a participating network provider with respect to the services.” – so any health plan that doesn’t cover out-of-network care (like the Colorado HealthOP plan I described) will make an exception for emergency care. What’s important to note however, is that neither the ACA nor Colorado law require that out-of-network ED to accept the carrier’s payment as payment in full. Balance billing is permitted if the facility is not contracted with the health insurance carrier.
To sum it up, the ACA provides some protections for patients with regards to out-of-network emergency care. And Colorado law provides protection for patients who receive care from an out-of-network provider while at an in-network facility. But if the facility is out-of-network, even in an emergency, balance billing is generally not prohibited.
In reading about this issue however, I did come across numerous examples of patients successfully negotiating to get the balance bills reduced or waived. That usually involved working with the insurance company, the provider, and in some cases, the state Insurance Commissioner. If you’ve received a balance bill, it’s absolutely in your best interest to attempt to negotiate before paying the bill.