If a medical provider or facility does not contract with a health plan but provides an enrollee with emergency services (including behavioral health emergencies) or certain services during a scheduled procedure at an in-network facility, they must bill the health plan directly and not the enrollee. This includes behavioral health services provided by a:
- Mobile rapid response crisis team
- Crisis triage or stabilization facility
- Evaluation and treatment facility
- Or from an agency certified to provide outpatient crisis services or medical withdrawal management services
The enrollee’s cost-sharing amount is limited to what it would be if the provider or facility was in the health plan’s network. Cost-sharing paid by the consumer also counts towards their deductible.
State and federal surprise billing laws apply to all health plans
Surprise billing protections apply to all state-regulated health plans, state and school employee benefit plans and self-funded group health plans. Some self-funded group health plans have also opted to follow Washington’s Balance Billing Protection Act and provide greater protections to their enrollees. All health insurers must have a process that helps a provider or facility determine if their enrollee is subject to Washington’s Balance Billing Protection Billing law.
How is the allowed billed amount determined?
Until July 1, 2023 or a later date set by the commissioner, the amount a provider or facility is paid under the Balance Billing Protection Act must be a commercially reasonable amount and based on payments for the same or similar services in a similar geographic area.
If the health plan and provider or facility cannot agree on an amount to be paid for the service after 30 days, either party can go to arbitration. Each party pays their own attorney fees and they split the cost of arbitration. The arbitrator will choose one party's best offer.
After July 1, 2023 or a later date set by the commissioner, the parties must follow the process outlined by the federal No Surprises Act (www.cms.gov). OIC recently announced that the transition to the federal No Surprises Act process would be delayed until at least January 1, 2024.
The parties can access a data set from the All Payer Claims Database to help during the negotiation of a reasonable payment amount. The data set:
- Is based on commercial health insurance claims.
- Includes the median in-network, out-of-network and billed charges for the services covered under the law.
See a list of approved arbitrators.
Consumer notice requirements for providers and facilities
Medical providers and facilities must post information (PDF, 114KB) about their provider networks on their websites and give it to consumers, if asked. They also must:
- Refund consumers any amount they have overpaid within 30 business days.
Not ask consumers to limit or give up their rights to prevent balance billing.
Medical facilities must:
Give health insurers they contract with a list of non-employed providers under contract with the facility that provide surgical or ancillary services within 30 days of signing a contract with a health insurer.
Notify the health insurer within 30 days of a provider’s removal from or addition to the non-employed provider list.
Respond to a health insurer’s request for an updated provider list within 14 days.
And medical providers must give accurate and timely information to health insurers about their status in the plan’s network.
How enforcement works
If a provider or facility continues to balance bill a consumer and we see a pattern of unresolved violations of the Balance Billing Protection Act, we will first give the provider or facility a chance to correct its behavior.
If no steps are taken by the provider or facility to correct the balance billing, we will consider it unprofessional conduct and will refer the provider or facility to the Department of Health for enforcement.