Dealing with health care providers who seek to “balance bill” in personal injury cases is becoming an increasingly frequent occurrence in our practice. Balance billing is when the medical provider seeks payment for the entire bill when a portion of that bill was not covered by the patient’s health insurance or HMO. In other words, the medical provider bills the patient for whatever is not paid by the insurance company or HMO. For example, your client’s insurance company might be willing to pay $4,000 for a particular surgery, but the surgeon charges $5,000. If the surgeon’s office accepts the plan’s payment, but then seeks to collect the remaining balance from the client, the surgeon is balance billing the client. The question for the personal injury lawyer who is trying to get as much money as he/she can for their client is can medical providers balance bill from a settlement or judgment of a personal injury claim?
If the provider is Medicare the answer is no. See 42 U.S.C. 1395(y). In Maryland medical providers cannot balance bill if payments are made by an HMO. See Health General Section 19-710(o); Patel v. Healthplus, Inc., 112 Md. App. 251 (1996).
With respect to other insurance companies, the answer is generally the provider cannot balance bill. But it depends on the insurance company’s contract with the medical provider. Generally, in-network medical providers may not balance bill for covered services under the terms of their contract. They must accept the amount paid by the plan (plus any member co-payment and/or coinsurance) as stipulated in their contract. The language of the contract will provide the answer. Medical providers that are out-of-network and do not have an agreement with the insurance company, often hospitals after an emergency room visit, may balance bill.
If you are in an HMO or PPO, the law might protect you beyond your co-payments and deductible. Doctors who accept assignment also may not balance bill in Maryland
Three practice pointers for personal injury lawyers:
1. Ask to see a copy of the medical provider’s contract with the insurance company. In most cases the language expressly forbids balance billing (most notably for Maryland lawyers, the Blue Cross contracts that I have seen do). Moreover, providers most often do not want to produce the contract because they tend to assume the contract is written to punish them at every turn (doctors hate health insurance companies). When our lawyers ask to see the contract, usually they end their quest to balance bill.
2. Explain to the health care provider the rule in Plank v. Summers, 203 Md. 552 (1954), a Maryland Court of Appeals case which stands for the proposition that injury victims may recover the “reasonable value” of the health care providers services. In other words, in the example above, if the health insurer believed the claim for the surgery should cost $5,000, why should the health care provider be able to charge more? Isn’t that really the “value” of the service? Of course, if the Plaintiff’s expert testified at trial that the bills were fair, reasonable, necessary and causally related, it makes this argument more problematic. But normally this issue arises for lawyers just before or after a settlement as opposed to a verdict.
3. It is a violation of federal law to balance bill Medicare. From talking to some health care providers, some personal injury lawyers interpret this as balance billing is always a crime and that the health care providers need to be “set straight.” This sense of rightousness is emboldened by the fact that this is the one part of the resolution of a personal injury case where the lawyer is acting purely on the client’s behalf because reductions do not increase the attorney’s fee. But it is critical to remember that the health care providers are the ones who were able to (hopefully) bring the lawyer’s client back to full health. If the accident lawyers seeking the reduction do not accuse the health care provider and instead treat them with the respect and deference to which they are entitled, the lawyer is more likely to get the reduction his/her client needs while also fostering a relationship that will benefit future injured clients.
- Look at balance billing laws by state
- New Maryland law is complex
- Schull v. Groover, Christie & Merritt: key 2012 balance billing case