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Surprise Medical Bills- Stuck in the Middle

Posted by David P. Martin | Apr 04, 2024 | 0 Comments

Recently a question was posed to me as to how the "No Surprises Act" (NSA) worked with a medical benefit claim. More specifically and importantly, what happens if the health insurance company and an out of network emergency provider, like an ambulance service, disagree on the insurer's payment? If the provider refused to accept that health insurer payment along with the patient's co-pay or deductible as payment in full, is the patient on the hook for the balance so to speak? 

To put numbers to that, if your health insurer only pays $5,000 of a $50,000 air ambulance bill, and your co-pay is only $500, what happens if the provider refuses $5,500 as payment in full? Can the patient be responsible for the balance of $45,500? Is the patient “stuck in the middle” of this disagreement?  There are disputes after all as to what is an appropriate payment. This can arise with a personal injury claim of course. The “underpaid” air ambulance service might demand payment in full given there may be a personal injury recovery. 

Let's start at the beginning of this rather recent law. The NSA became law in December 2020 and since then there have been several rounds of additional rules that Federal agencies have imposed. The NSA amended the Public Health Service Act, the Internal Revenue Code (IRC), and the Employee Retirement Income Security Act (ERISA). 42 U.S.C. §§ 300gg et seq. The focus of the NSA was to end surprise billing for medical care. The effort was guided toward ensuring that out-of-network providers are treated the same as in network providers. It did this by requiring that certain out-of-network providers - such as air ambulances - are treated the same as in-network providers. See § 300gg-112(a)(1). So how does that help the patient?

First, the NSA bars billing patients for out-of-network emergency services and nonemergency services rendered by out-of-network providers at in network facilities under certain circumstances. ("[T]he health care provider shall not bill, and shall not hold liable, such [patient] for a payment amount for an emergency service . . . that is more than the cost-sharing requirement." Id. at § 300gg-132. That certainly sounds like it keeps the patient out of the middle of certain billing disputes. 

Second, what is supposed to occur under the NSA is for the claim to be presented to the health insurance provider. That insurer must make a timely decision and furnish a QPA or qualified payment amount to the out of network emergency provider. If that out-of-network provider disagrees with that amount those two parties are to engage in negotiations. If they cannot agree on the amount, those two parties are to engage in an independent dispute resolution (IDR) procedure – which is "baseball" arbitration. Thus the provider and the insurer are supposed to fight this out between them. So if the NSA applies the patient should be kept out of the middle. 

To be clear it does not apply to every billing dispute. So how can you know if the NSA applies to your large bill or to your client so as to keep you out of the middle? There are three questions are critical here:

  1. Did the patient receive emergency services from an out-of-network provider OR
  2. Did the patient receive non-emergency services from out-of-network providers while in an in-network facility?
  3. Did the patient fail to consent to the out-of-network charges?

If you can answer yes to 1 and 3 or 2 and 3, the NSA applies. 

So there is a way to keep out of the middle… but it will require that all parties know the rules. Timely decisions by medical plans, providers who know the rules, and a patient who is either unconscious or unaware of the care or savvy enough not to consent.


About the Author

David P. Martin

Senior & Managing Attorney


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