Surprise billing law may create new tension between providers and patients

·2 min read

At least one major source of tension remains unresolved regarding the new law banning surprise medical bills: what it looks like for patients to willingly waive their protections — or refuse to waive them.

Why it matters: This could yet again pit providers' rights against their patients'.

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Driving the news: The Biden administration last week released the first rule implementing the surprise billing law passed late last year, which will take effect in January.

  • It asked for input on several issues, including how to handle non-emergency situations in which a patient seeks care from a provider who isn't covered by their insurance.

  • "HHS seeks comment on striking the appropriate balance between allowing a specialist to refuse to treat an individual unless the specialist can balance bill the individual while ensuring that the individual is not being pressured into waiving the balance billing protections," the rule states.

Between the lines: The law allows providers to bill patients for out-of-network care in certain situations only after a stringent "notice and consent" process.

  • However, "consent" can be a tricky concept. The law — and the rule — is clear that patients shouldn't feel coerced into signing away their surprise billing protections.

  • But the administration appears to be suggesting that it's not clear what rights a provider, particularly a specialist, has to refuse care if the patient won't sign the consent form.

  • If providers don't have the option to refuse to treat out-of-network patients who won't consent to being billed as such, it could undermine the entire concept of insurance networks.

What they're saying: “This was always designed to preserve patient choice, not to become a massive loophole for surprise billing," said Adam Buckalew, founder of ALB Solutions and a former congressional aide who helped write the surprise billing law.

  • "The rule seeks clarity on maintaining balance for both patients and specialists in limited scenarios," he told Axios.

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