Laws prohibiting surprise medical bills are working

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Each week, the NH Insurance Department addresses disputes from Granite Staters who received a surprise medical bill. Oftentimes, the department can resolve these bills by working with the person’s insurance provider and pointing to federal and state legislation that prohibit surprise medical billing.

“It’s been a huge, huge benefit to consumers,” says D.J. Bettencourt, commissioner of the insurance department.

The surprise bills most often occur when someone goes to an in-network hospital but is treated by an out-of-network provider. The bills reflect the balance left between the amount that the out-of-network provider bills and the amount that insurance agrees to pay. For this reason, surprise billing is often called balance billing.

No matter what name it goes by, the results can be detrimental. Medical debt plays a role in more than 58% of bankruptcies in America, according to a 2019 study in the American Journal of Public Health. Nearly one in five households have medical debt according to the Consumer Financial Protection Bureau, which is why most medical debt, including surprise bills due to out-of-network providers, can no longer be reported to credit scoring agencies. Legislation that prohibits surprise billing—passed by the state in 2018 and the federal government in 2020—aims to address that. Today, the legislation prevents more than one million surprise bills each month, according to Senator Maggie Hassan (D-NH), who sponsored the federal legislation.

Despite the resounding success of the legislation, there is “more work to do,” Hassan says. Efforts to raise awareness about consumer protections, resolve disputes in a timely manner, and cover ambulance rides are ongoing, experts say.

NH Was an Early Adopter of Protections

Surprise billing became illegal in NH on July 1, 2018, with the implementation of RSA 329. That law prohibited providers from charging out-of-network rates for anesthesiology, radiology, emergency medicine, or pathology services if a patient went to an in-network facility.

The legislation had bipartisan support in part because everyone understood the unfairness of receiving a shocking bill, says Holly A. Stevens, director of public policy for the NH chapter of the National Alliance on Mental Illness (NAMI NH). She advocated for the legislation in her previous role as the health policy coordinator for New Futures, a nonpartisan nonprofit focused on health care policy in NH.

“People do their due diligence and find an in-network facility, [but] when you show up to get the services done you don’t have a choice over who your anesthesiologist is,” Stevens says.

If the provider was out-of-network, the patient could be left holding a massive bill. It was important that patients not be billed “astronomical rates” for services from providers that they didn’t get to choose, Stevens says. “It just isn’t fair.”

Although she’s in a different role now, Stevens says that protecting against surprise billing is aligned with her work at NAMI NH. “That’s really important for our mental health folks. A lot of them land at ERs, and at ERs that they don’t have a choice of,” she says. “It shouldn’t be laid on the patient to pay an astronomical amount of money when they don’t have a choice.”

The 2018 law put the onus on the insurance company and medical provider to resolve the bill. “We decided we’re going to remove the consumer from that discussion,” Bettencourt says.

In 2020, the federal government passed the No Surprises Act, which was sponsored by Hassan and Republican Sen. Bill Cassidy of Louisiana. The federal legislation took effect in 2022 and strengthened existing consumer protections in NH.

“Those two protections work incredibly well in tandem,” Bettencourt says.

This year, the state Legislature is expected to pass Senate Bill 173, which will bring state law into full alignment with federal law. That includes expanding the legislation to cover all types of medical care—therefore giving the NH Insurance Department the authority to settle disputes that currently fall under federal law.

That will address one of the few drawbacks of the federal legislation: “a very slow process in dispute payment resolution,” says Andrew B. Eills, who practices healthcare law at Sheehan Phinney in Manchester.

“It can take months and months,” Eills says, since the number of disputes have been “much higher than the federal government expected.”

Bettencourt says that the state insurance department already has a system for dispute resolution since a similar process is used for disagreements over prior authorizations. The department gathers information and provides it to a third-party contractor, who issues a ruling. Since that process is already in place, Bettencourt is “highly confident” that disputes filed in the Granite State will be resolved promptly.

Federally, there have been lawsuits filed to address how a fair price is decided when the medical provider and insurance company can’t agree during negotiations, Eills says. In NH, however, there haven’t been any cases since 2018 where the parties have been unable to agree on a payment price, Bettencourt says.

Hospitals contacted by Business NH Magazine for comment on the story declined interviews, referring the magazine to the NH Hospital Association.

The association also declined an interview, only issuing this written statement from Ben Bradley, vice president of state government relations.

“Hospitals comply with existing federal laws and regulations established by the No Surprises Act to protect patients from surprise medical bills. The proposed state legislation is modeled after the federal No Surprises Act and would codify similar billing protections into state law. The New Hampshire Hospital Association has been engaged with stakeholders on this issue and is committed to ensuring the proposed legislation gives our members the tools to fairly resolve payment disputes with insurers while protecting patients from balance billing,” Bradley states.

A Major Hole in Consumer Protections
Despite concerted efforts at the state and federal level there remains a significant hole in the consumer protections against surprise billings: Ambulance rides are not covered by either law.

“We think there’s a real fundamental unfairness for the consumer there, in a dangerous way, quite frankly,” Bettencourt says.

Yet despite that, neither the state nor federal government has been able to come to a resolution. This is because of convoluted factors in the ambulance marketplace that essentially equate to a broken cost shifting structure, Bettencourt says. Cost shifting is a practice in healthcare where some patients are charged more than others. Most often, it involves people with commercial insurers being billed at a higher rate to compensate for low reimbursements from Medicare and Medicaid.

About 80% of ambulance rides are billed to Medicare or Medicaid, often at a rate lower than what it costs to provide those services, Bettencourt says. In turn, providers charge a premium to people with commercial insurance, hoping to cover the losses from Medicare and Medicaid reimbursements. Since there is such a small margin of profitability, ambulance providers do not agree to in-network rates with insurers.

Last summer, Bettencourt and the state insurance department convened what he calls “the ambulance summit” to try to figure out a resolution. It was ultimately unsuccessful, but Bettencourt says he is “confident that the discussion we started will bear fruit” and the state will be able to prohibit surprise billing from ambulance providers in the future.

“When somebody needs an ambulance, we don’t want them thinking about whether or not they should call for an ambulance,” because of the costs, he says. “We want them focused exclusively on getting immediate medical attention.” 


What to Do if You Get a Surprise Medical Bill

If you receive a surprise medical bill charging out-of-network rates for services received at an in-network facility, contact the NH Insurance Department online at nh.gov/insurance, by calling 800-852-3416, or by emailing consumerservices@ins.nh.gov.

The department also has a process for resolving surprise bills that a consumer has already settled.

“If the consumer paid a bill that they were not required to pay, we will get involved and that consumer has the ability to be reimbursed,” says D.J. Bettencourt, commissioner of NH’s Insurance Department.

These articles are being shared by partners in The Granite State News Collaborative. For more information visit collaborativenh.org.