Protecting the Public’s Blindside - WA State – Balance Billing Protection

A collective sigh of relief! No more medical billing surprises! The Washington state legislature passes a bill to prevent balanced billing. Here are the new rules taking effect January 1, 2020.

Taking action against an injustice blindsiding an increasing number of constituents, effective January 1, 2020, the state legislature has banned balance billing for certain services through HB 1065, the Balance Billing Protection Act (BBPA). Providers will not be allowed to balance bill a patient for emergency services at out-of-network emergency rooms or for out-of-network services at an in-network hospital or ambulatory surgical facility.  While the BBPA applies only to fully-insured or public employee plans, self-funded plans can opt into the BBPA rules by annually providing written notice to the commissioner. The BBPA requires the carrier to pay the non-network provider (not the patient). It is expected that the carrier and provider will negotiate payment levels in good faith, but the BBPA includes extensive arbitration rules in the event a claims payment is not agreed upon. 

Services and Facilities
Surgical and ancillary services protected from non-network provider balance billing include surgery, anesthesiology, pathology, radiology, lab services, and hospitalist services. The rules also specify which facilities are included under the BBPA:

• Hospitals
• Nursing homes
• Hospice
• Community mental health centers
• Kidney disease treatment centers
• Ambulatory diagnostic, treatment, or surgical facilities
• Drug and alcohol treatment facilities
• Home health agencies

The BBPA rules will not affect non-network charges billed to Medicare Supplements, short term plans, student-only plans and the Veteran’s Administration program. 

Patient Responsibility
In instances where a patient is not allowed to be balance billed under the BBPA rules, the carrier will need to apply in-network deductibles, copays, and coinsurance levels for these non-network services. These out of pocket expenses must be applied toward the in-network out of pocket maximum of the patient’s health plan. If a patient paid the provider more than is required under these rules, the provider must refund the patient within 30 days. Any payments returned after 30 days will be subject to an interest rate of 12%. 

Communication
The commissioner is tasked with creating a standard consumer-rights template, as well as the methodology of providing the information to consumers. At a minimum, all hospitals, providers and carriers must post this information on their website. In addition, hospitals and ambulatory surgical facilities must provide a listing of in-network carriers on their website. If the provider does not have a website, then both the consumer-rights information and in-network data needs to be provided orally or in writing. 

Carrier Contracting
Within 30 days before executing a contract with an insurance carrier, the facility must provide a list of the non-employed providers or provider groups contracted to provide surgical or ancillary services at the facility. The facility must notify the carrier within 30 days of a removal from or addition to the list, and must provide an updated list within 14 days of a carrier’s request.

On the Border
An interesting provision within the law states that patients must be held harmless from balance billing when emergency services are provided by an out-of-network hospital in a state that borders Washington State. The BBPA provides the commissioner with the authority to work with bordering states on appropriate means to prohibit balance billing by out-of-state hospitals for services received by Washington residents.

Arbitration
There will most likely be times when the non-network provider does not agree with the carrier’s payment level for certain services. The BBPA allows for arbitration, with specific deadlines. The arbitrator’s expenses and fees will be evenly split between the provider and the carrier, unless one party does not submit their claim information to the arbitrator on a timely basis.
Multiple claims can be addressed in a single arbitration proceeding if the claims involve the identical carrier and provider/facility, encompass the same or similar service codes relevant to a particular procedure, and occurred within two months of each other.

By July 1st, and annually thereafter, the commissioner will compile a report including summary information about claim payments that are determined through arbitration. This reporting expires as of 1/1/2024.

​Timelines
The BBPA specifically outlines the deadlines underlying the arbitration process. The clock starts ticking once the out of network provider sends the carrier a claim.

Deadline	Action
​Within 30 days of receipt of claim from the provider	​Carrier offers to pay a commercially reasonable amount to the provider
​Within 30 days of receipt of payment or payment notification from the carrier	​The provider can dispute the amount of payment
Within 30 days of the initial offer date	The carrier and provider can negotiate in good faith
​Within 10 days after the good faith period	If good faith negotiations do not resolve the matter, one party can initiate arbitration by notifying the commissioner and the other party that the amount remains in dispute
Within 7 days of the notice to the commissioner	The commissioner will provide both parties with a list of approved arbitrators for them to choose amongst
Within 10 days of the notice to the commissioner	Both parties must execute a nondisclosure agreement
Within 20 days of receipt of the list of arbitrators from the commissioner	The two parties must agree on an arbitrator. If they cannot, then must notify the commissioner who will provide a new listing with only five arbitrators included.  Each party will be allowed to veto two names.  If only one remains, that will be the arbitrator. If more than one remains, the commissioner will choose the arbitrator from the remaining names.
Within 30 days of the initial notice to the commissioner	The non-initiating party has to provide their final offer to the initiating party
Within 30 days after the arbitrator is chosen	Each party must provide a written submission to the arbitrator of its position, including evidence and methodology for its proposed claim payment amount.  If one party does not submit timely without good cause, it will be in default and the arbitrator may charge that party the full arbitrator’s fees and expenses, plus the other party’s reasonable attorney fees.
Within 30 days after the parties’ written submissions	​The arbitrator must issue a written decision to the parties and the commissioner.  The arbitrator will choose one of the party’s dollar amounts or the other.

​The Bottom Line
The Balance Billing Protection Act will undoubtedly provide consumers with peace of mind when seeking services at one of their plan’s preferred provider facilities, or in the event of emergency services. The bill was introduced after numerous horror stories of patients being balance billed tens of thousands of dollars. This bill goes further by requiring carriers to assess these out-of-network charges at in-network patient cost sharing, providing another level of patient protection. Finally, the bill provides a specific path of arbitration for carriers and providers when they cannot see eye-to-eye on the payment level for a claim. It remains to be seen how Washington’s insurance commissioner will be able to affect out-of-network hospital billing for charges incurred by Washingtonians at non-network facilities in states across our borders.