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On September 23, 2016, Governor Brown signed into law Assembly Bill (AB) 72, a bill that protects consumers from surprise medical bills. Surprise medical bills arise when an enrollee or insured individual inadvertently receives care from an out-of-network provider.
Enrollees or insured individuals have a reasonable expectation that when undergoing a medical procedure with an in-network facility, all members of the health care team that attend to the individual are also in-network. However, this may not be the case due to differences in health plan contractual relationships among different members of the health care team. Anesthesiology, pathology, and radiology are commonly cited specialties for which contractual arrangements may not be in place. In some cases, entire departments within an in-network facility may be operated by subcontractors who don’t participate in the same network. The in-network provider or facility often arranges for the other treating providers, not the patient. Hence, patients are often unaware that some of the medical services they were receiving at an in-network facility were in fact out-of-network and thus more expensive. The patient may later be “balance billed” for the difference between the out-of-network provider charges and what was reimbursed by their plan. Moreover, the out-of-network cost-sharing would not count towards their out-of-pocket maximum and deductible.
A Kaiser Family Foundation survey found that among insured, non-elderly adults struggling with medical bill problems, charges from out-of-network providers were a contributing factor about one-third of the time. Further, nearly seven in 10 of individuals with unaffordable out-of-network medical bills did not know that the health care provider was not in their health plan’s network at the time they received care.
AB 72 fixes this age old problem. AB 72 provides that for health plan contracts or insurance policies issued, amended, or renewed on or after July 1, 2017, if the enrollee or insured obtains covered services from a contracting health facility but receives care from a non-contracting individual health professional, the enrollee or insured shall pay no more than the in-network cost-sharing amount. Any cost-sharing paid by the enrollee or insured to the non-contracting individual health professional shall count towards the limit on annual out-of-pocket expenses and deductible.
If the non-contracting individual health professional is paid more than the in-network cost-sharing amount by the enrollee or insured, the non-contracting individual health professional shall refund any overpayment to the enrollee or insured within 30 calendar days after receiving the payment. If the non-contracting individual health professional does not refund any overpayment within 30 calendar days after being informed of the in-network cost-sharing amount, interest shall accrue at the rate of 15 percent per annum beginning with the date payment was received from the enrollee or insured.
A non-contracting individual health professional may bill the out-of-network cost-sharing only when the enrollee or insured consents in writing at least 24 hours in advance of care. The consent shall be obtained by the non-contracting individual health professional in a document that is separate from the document used to obtain consent for any other part of the care or procedure. At the time of consent, the non-contracting individual health professional shall give the enrollee or insured a written estimate of the enrollee’s or insured’s total out-of-pocket cost of care. The non-contracting individual health professional shall not attempt to collect more than the estimated amount without receiving separate written consent, unless circumstances arise during delivery of services that were unforeseeable.
Under AB 72, unless otherwise agreed to by the non-contracting individual health professional and the plan, the plan shall reimburse the non-contracting individual health professional the greater of the average contracted rate or 125 percent of the amount Medicare reimburses on a fee-for-service basis for the same or similar services in the general geographic region in which the services were rendered. If the enrollee or insured voluntarily consents to the out-of-network services, the amount paid by the plan shall be the amount set forth in the evidence of coverage.
AB 72 also requires the Department of Managed Health Care (DMHC) and the Department of Insurance (DOI) to establish an independent dispute resolution process for resolving claim disputes between a health plan and a non-contracting individual health professional. Finally, AB 72 requires DMHC and DOI to report findings on the impact of the bill on health plan contracting and network adequacy based on additional information provided in the plans’ network data reporting submissions.
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