Providers have faced many challenges since the start of the COVID-19 pandemic and have needed to quickly react to changing laws and regulatory requirements impacting their operations. One such change is the restrictions on so-called “surprise” medical bills for COVID-19 patients.
Patients with private insurance have out-of-pocket costs (also known as “cost-sharing”) for medical care, which could be comprised of deductibles, copayments or coinsurance. When a patient seeks care from a provider with whom his or her insurer does not have a contract (i.e., seeks care from an out-of-network provider), the patient may receive a bill from the provider for the difference between the total cost of services charged by the provider and the amount the insurance paid the provider. This practice is often referred to as “balance billing” or “surprise billing.”
Both federal legislation (including related federal agency guidance) and Ohio agency guidance impact how (or when) providers may seek cost-sharing from patients for COVID-19-related testing and services.
The ability of a hospital to collect cost-sharing amounts for COVID-19-related tests and services from a patient depends on whether the test or service is diagnostic (i.e., related to a workup for COVID-19 that results in a test) or whether the test or service is related to treatment for COVID-19. Note that providers and health plans should not be surprise-billing patients in either context.
COVID-19 diagnostic services (evaluation and testing)
For certain services furnished on or after March 18, 2020, and continuing through the emergency, the Families First Coronavirus Response Act (FFCRA) requires group health plans and health insurance issuers offering group and individual health insurance coverage to cover qualifying items and services furnished during a visit for COVID-19 without any patient cost-sharing (including deductibles, copayment and coinsurance). Qualifying services include those provided during a visit that results in a test for COVID-19 when those services relate to furnishing the test, or to evaluate whether a test is needed (e.g., a blood test, influenza test, etc.). This includes services provided at a provider’s office (in-person or via telehealth), an urgent care center or an emergency room.
In short, the FFCRA requires insurers to waive cost-sharing for COVID-19 testing and the associated medical visit. However, that requirement does not extend to treatment. That said, providers accepting CARES Act funds must agree not to send balance bills to any patient for COVID-19-related treatment. Further, an order issued by the superintendent of the Ohio Department of Insurance (ODI) prohibits COVID-19 balance billing by health insuring corporations.
Providers may collect cost-sharing amounts for other COVID-19-related services, (e.g., an emergency department visit after an individual has already been diagnosed with COVID-19 or an inpatient admission). However, CARES Act fund recipients may only seek in-network level cost-sharing amounts from patients, even if the provider is out-of-network with the patient’s insurer.
The CARES Act Terms and Conditions for fund recipients require recipient providers to certify that for all care for a presumptive or actual case of COVID-19, it will not seek to collect out-of-pocket expenses from the patient in an amount greater than what the patient would have otherwise been required to pay if the care had been provided by an in-network provider. Similarly, in Ohio, surprise billing patients for COVID-19 testing and treatment obtained from an out-of-network provider is prohibited. Health insuring corporations providing coverage in Ohio must ensure coverage for out-of-network “emergency services without balance billing based on an ODI order. ODI considers “emergency medical conditions” under Ohio law to include testing and treatment related to COVID-19. These emergency services must be covered without preauthorization and must be covered at the same cost-sharing level as if provided in-network.
Finally, it is worth noting that even though not required by law, several of the nation’s largest insurers, including Cigna, and Humana, are voluntarily waiving any cost-sharing for coronavirus treatment for its full-insured and/or Medicare Advantage products, such as inpatient admissions.
Ongoing dialogue with insurers might be required in order for providers to determine what in-network level cost-sharing amounts would be and instances when insurers have voluntarily waived any cost-sharing.
Bricker & Eckler’s health care attorneys will continue to monitor legal developments on COVID-19 surprise medical bills, including HB 388, which passed in the Ohio House on May 20, 2020.