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Legislation Would Eliminate Patient Responsibility For Surprise Out-of-Network Medical Bills

An older man in a wheelchair gestures while talking to a doctor.
(Photo: Crixell Matthews/VPM News)

Insured Virginians who end up in the hospital for an emergency – or even a scheduled procedure – can sometimes end up with a surprise bill from an out-of-network provider. It’s known as “balanced billing,” or “surprise billing.”

“Really, they're billing you the balance of the bill that your insurance company is not going to cover,” said Sara Cariano, policy specialist with the Virginia Poverty Law Center.

State lawmakers are weighing in on a number of different proposals to protect patients from these surprise bills this year, as they have for the past few years. Over 25 states already have these laws on their books.

“Our main goal is just to remove the patient from the billing dispute,” Cariano said. “There are different ways to do that.”

One way, supported by the Virginia Hospital and Healthcare Association (VHHA) is to establish fixed costs, based on fair market values and regional averages, to determine how much out-of-network providers would be reimbursed. It would protect patients in emergency situations.

Del. Luke Torian (D - Prince William County) and Sen. Barbara Favola (D - Arlington) are carrying the legislation this year, which was backed by Republicans and cleared the Senate unanimously in 2019. The Medical Society of Virginia, the Virginia College of Emergency Physicians and the Virginia Society of Anesthesiologists also support this legislation.

“We view that legislation as the appropriate and responsible approach to address the issue of balanced bills in emergency medical situations,” said Julian Walker, spokesperson for the VHHA. “It’s got support from doctors, hospitals, patients and consumer advocates.”

But these surprise bills aren’t only popping up in the ER, says Jill Hanken, health attorney for the Virginia Poverty Law Center.

“It could be anything that someone plans to get a surgical procedure for, but is unaware of the fact that some of the ancillary doctors like anesthesiologists, radiologists, lab technicians, hospitalists, are not in network,” Hanken said. “I heard of one story about a hospitalist that a patient didn't even know was treating them who sent a bill, even though the patient was in an in-network facility.”

Legislation sponsored by Del. Mark Sickles (D - Fairfax County) and Sen. George Barker (D- Fairfax County) would extend protection from balanced billing to these non-emergency situations, but also establishes a different set of rules to govern how much out-of-network providers ultimately get paid.

 The VHHA’s spokesperson says they have concerns about establishing a payment rate that’s lower than the cost of care.

Del. Dawn Adams (D - Richmond City) also has a bill that would create an arbitration process to help negotiate out-of-network payments between doctors, hospitals, and insurers.

Some advocates, like Haken with VPLC, say this could be a compromise that she hopes lawmakers will consider.

“Since the parties haven't been able to resolve the dispute themselves, we think it's time for a third party arbitrator to step in and help guide the conversation and make a decision about how much is going to be paid,” Hanken said.

The legislation is expected to come up for further discussion Sunday during the Senate Commerce and Labor Committee meeting, after being pushed from the committee’s agenda Monday afternoon.

Megan Pauly covers education and healthcare issues in the greater Richmond region. She was a 2020-21 reporting fellow with ProPublica's Local Reporting Network and a 2019-20 reporting fellow with the Education Writers Association.