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Life Saving Education For Lifesavers

Balancing Billing

FCEP and Partners Create Important Legislative Platform for Out-Of-Network Coverage for Care
March 15, 2016

Dear FCEP Members, and other Colleagues,

What has transpired over several years for our legislative agenda is significant. Late this past Friday, one of the last remaining bills for the session– HB 0221 – was passed.  We think we have scored a victory for emergency medicine with the outcome of this important bill.

Out-of-Network Health Insurance Coverage is on its way to the Governor to be signed. Some of the key provisions of the bill included are detailed below.

This was a very controversial piece of legislation and will affect you and your practice for years to come. I wanted to take a moment to explain this legislation to you, where it came from and where we are going forward, assuming it is signed into law by the Governor.

The legislation centered around balance billing. When a patient is seeing a provider who is “out of network” for their health insurance coverage or plan, the billed amount not paid by their insurer is the remaining balance that is billed to the patient. Over the past several years, the insurance industry and consumers have highlighted in the media egregious examples of this billing practice. Most of these stories had nothing to do with the services billed for by emergency physicians. Unfortunately, in our society with rapid dissemination of “news” and the political optics of over simplifying complex issues, emergency physicians were thrown in to the stew with all of the other players involved.

There is currently a nation-wide push by the insurance industry and consumer advocates to ban the practice of balance billing. Recognizing this, we knew we needed to be proactive on the issue. From the very beginning we have determined we could give up our right to balance bill patients for out of network care as long as we had the following key concepts included in the solution:

  • We need to be paid a fair rate for our care based on a good definition of what constitutes a fair usual and customary charge
  • We need an improved dispute resolution process to protect us and to use when insurers underpay what we consider to be a fair rate

Existing HMO law already bans balance billing of HMO patients. Existing HMO law states we should be paid by the insurer for out of network care the lesser of the following:

  • the billed charges;
  • the usual and customary charges for similar services in the community; or
  • the negotiated rate.

Unfortunately, insurers have used the vagueness of the second point to underpay. Attempts to use the voluntary dispute resolution process have been avoided since a prior decision selected an arbitrary percentage of Medicare as a reasonable reimbursement amount. This is unacceptable as Medicare reimbursements have been continuously declining in value due to federal budget concerns.

At the start of this 2016 legislative session, the proposed bill, HB 221, would have allowed insurers to determine what our payments should be. Additionally, when determining what a reasonable payment to an out of network provider should be, the bill called for the dispute resolution organization to consider such things as our usual Medicaid payments and any discounts for indigent care.

We worked hard to preserve our right to be paid fairly and to improve the broken dispute resolution process. We believe we have succeeded! We worked with a coalition of people and organizations, including the FMA, several prominent billing companies and we had support from our ACEP and EDPMA colleagues.  We also engaged in a public relations push. Links to some of our PR efforts are detailed at the end of this message.

The final bill requires Out of Network PPO insurance payments to mirror the HMO payment provisions for:

  • emergency care and
  • non-emergency care providers in a facility that has a contract with an insurer and provided when the insurer does not have the ability and opportunity to choose a participating provider at the facility who is available to treat the insured.

The bill also includes changes to the provider and health plan claim dispute resolution program:

  • Allows and sets up a process for a settlement “best offer” to be made by both parties
  • Requires AHCA to develop rules to the dispute resolution program including:
    • Requirement for the dispute program to review and consider ALL documentation submitted
    • Requires the program to make findings of fact
    • Allows for either party to request an evidentiary hearing
    • No ex parte communication with either party during the dispute resolution
    • Finding of fact must be supported by evidence relied upon in making final order, and must be part of final recommendation
    • Stipulates that disputes with regard to reimbursement to the nonparticipating provider of emergency or nonemergency services  shall be resolved in a court of competent jurisdiction or through the voluntary dispute resolution process of 408.7057

In addition to the requirements above, the bill also:

  • Requires a hospital to post on its website:
    • The hyperlink for all insurers the hospital contracts with
    • A statement that health care practitioners in the hospitals may bill separately than the facility
    • A statement that the practitioners that provide services in the hospital may or may not participate in the some insurance plans as the hospital
    • Contact info for practitioners and medical practice groups that provide services in the hospital, and instructions on how to contact these practitioners to determine if they are in-network providers
  • Requires an insurer to post on its website:
    • A list of all preferred providers with must include the name, address, telephone number of all providers and for physicians must also include board certifications, languages spoken, and any affiliations with participating hospitals
    • The list must be updated monthly
  • Requires insurance policies to clearly state that:
    • WARNING: Limited benefits will be paid when nonparticipating providers are used.  You should be aware that when you elect to utilize the services of a nonparticipating provider for a covered nonemergency service, benefit payments to providers are not based upon the amount the provider charges.  The basis of the payment will be determined according to your policy’s out-of-network reimbursement benefit.  Nonparticipating providers my bill insured for any difference in the amount.  You may be required to pay more than the coinsurance and copayment amount. 
  • Requires the Financial Services Commission to develop via rule a standardized prior authorization form which is not more than 2 pages long for prior authorization for a medical procedure, course of treatment or prescription drug benefit.  At a minimum the prior authorization form must include:
    • Sufficient patient information to identify the member, date of birth, full name and Health Plan ID number
    • Provider name, address and phone number
    • The medical procedure, course of treatment, or prescription drug benefit being requested, including the medical reason thereof, and all services tried and failed
    • Any laboratory documentation required
    • An attestation that all information provided is true and accurate
  • MD and DO statutes are amended to include willfully failing to comply with such frequency as to indicate a general business practice as grounds for disciplinary actions to be addressed by Board of Medicine
  • Adds to the Unfair Methods of Competition and Unfair or Deceptive Acts for insurers the act of willfully failing to comply with the new statute with such frequency as to indicate a general business practice
  • Includes insurance payments for therapy services for patients with Down Syndrome.

The bill, once signed, goes into law July 1, 2016.




Steven Kailes, MD, FACEP

Below you find all of the documents and supplementary information from FCEP on our stance on the issue of balance billing:

CLICK HERE to view our fact sheet on balance billing.

CLICK HERE to view our comparison chart of HCCMI versus Fair Health.

CLICK HERE to view a PowerPoint on balance billing by FCEP’s Dr. Daniel Brennan.

During Emergency Medicine Days 2016 (Jan. 18-20) in Tallahassee, Florida’s State Surgeon General Dr. John Armstrong had a message about EM Wellness Week for FCEP members and emergency medicine professionals throughout the state. He also touched on the issue of balance billing at his talk during EM Days 2015.


FCEP leaders also undertook a public relations and media campaign across Florida, working to educate the general public about the importance and relevance of the balance billing issue.

Below are op-eds and articles that were published that featured various FCEP leaders that were interviewed for them or authored them:

EM Day’s “Advocacy in Action” Podcast Series

Learn about the top legislative priority for the this year’s EM Days 2016: Balance billing. Listen to FCEP’s podcast below to learn about its affect on patients, emergency departments, and insurers, and some possible solutions to the balance billing issue which faces the state of Florida.

All narration done by Dr. Damian Caraballo on behalf of the Florida College of Emergency Physicians. 


Podcast No. 1 of 3: “An Intro to Balance Billing”


Podcast No. 2 of 3: “A More Detailed Look at Balance Billing”


Podcast No. 3 of 3: “A State-by-State Look at Balance Billing”