HB 888 – The Surprise Billing Consumer Protection Act

OBF Attorneys Predict Impact on Billing and Hospital Liens

Last week, The Georgia Senate overwhelmingly passed HB 888 – The Surprise Billing Consumer Protection Act.  This bill had already passed the House and will be headed for signature by Governor Kemp, who has previously indicated that this law was a priority.  If signed, this law will take effect on January 1, 2021.

Some notable highlights of the bill, which only applies to non-ERISA plans, include the following:

• Health insurers shall pay for emergency hospital and physician claims regardless of participation status with Georgia hospitals.  (HB 888 §33-20E-4(a))
• Hospital reimbursement is unclear as the statute is currently drafted, but the amount that insurers will pay to physicians is the greater of: 1) the contracted amount paid by eligible insurers for the provision of same or similar services as determined by the state, 2) the most recent amount agreed to by the insurer and nonparticipating provider when the provider was in network, or 3) a higher amount as determined by the insurer due to complexity and circumstances of the services provider. (HB 888 §33-20E-(4)(b)(1-3))
• When a patient with non-participating insurance receives care from facility or physician, the facility shall only bill the patient for their deductible, coinsurance, copayment, or cost-sharing amount set forth in their policy. (HB 888 §33-20E-(4)(e))
• Any payments from insurers shall include notification whether the insurance plan is subject to ERISA. (HB 888 §33-20E-4(f))
• If an out-of-network payment is viewed by the facility as insufficient, the bill creates an arbitration procedure with strict timelines.  (HB 888 §33-20E-9)
• No credit reporting is allowable where patients do not pay their deductible, coinsurance, copayment, or cost-sharing amount set forth in their policy. (HB 888 §33-20E-22)
• The legislation, as written, contains some confusing directives to hospitals in particular.  The definition of “healthcare provider” at 33-20E-2(b)(9) notably excludes hospitals, as do the definitions for “non-participating provider” at 33-20E-2(b)(14), “participating provider” at 33-20E-2(b)(15), and “emergency medical provider” at 33-20E-2(b)(4), which all include “healthcare provider” as a portion of their definitions.  Because of this, the directives regarding the amounts to be paid to physicians under 33-20E-4(b)(1-3) do not seem to apply to hospitals, leaving a confusing roadmap to determining proper payment to hospitals.  Despite this fact, the prohibition against billing the patient anything more than their deductible, coinsurance, copayment, or cost-sharing amount does apply to hospitals, as does the arbitration procedure.  I suspect that this will have to be addressed, but this confusion does not change OBF recommendations once this law takes effect.

This bill does not apply to healthcare plans that are subject to ERISA (notably self-insured plans), but federal surprise billing legislation is rumored to be included in the next COVID-19 relief bill.  OBF will keep you apprised of any changes at the federal level.

Billing and Hospital Lien Recommendations for January, 2021

Once this law takes effect in January of 2021, OBF recommends that hospitals and physicians:

• File claims seeking reimbursement for emergency services with non-participating medical providers.

• Carefully review the EOBs to determine whether the plan is covered by ERISA.

• For non-participating ERISA plans, file liens and pursue reimbursement using current techniques.

• For patients with non-participating plans covered by this new state law, secure patient deductible, coinsurance, copayment, or cost-sharing amounts, and do not pursue patients further.

• Scrutinize the non-participating insurance reimbursement amount for accuracy and reasonableness, and aggressively pursue arbitration where appropriate.

• Contact OBF for assistance with arbitration required pursuant to this code section.

Upcoming Georgia Supreme Court Decision Could Affect Hospital Liens

Finally, the Georgia Supreme Court is currently deliberating on the Bowden III case (S19G0494 Bowden et al. v. The Medical Center, Inc. and S19G0496 The Medical Center, Inc. v. Bowden et al.), which scrutinizes whether hospital billed charges can be considered reasonable under the Georgia Lien Statute.  Oral arguments in this case may be viewed at the bottom of this web page, and a decision is likely forthcoming within the next couple of months.  For an interesting and hospital-friendly analysis of this case, the GHA filed an amicus brief in this case which may be viewed by clicking here.

OBF will share information about any changes and interpretations that may happen as this develops, and if questions arise about this statute, please call Attorney Thomas O’Brien at 844-623-9467 x108 or email Thomas@OBFlegal.com.