This article will explain how balance billing works, and the rules designed to protect consumers from some instances of balance billing.

Sometimes it’s legal, and sometimes it isn’t; it depends on the circumstances.

Illegal

Balance billing is generally illegal:

When you have Medicare and you’re using a healthcare provider that accepts Medicare assignment. When you have Medicaid and your healthcare provider has an agreement with Medicaid. When your healthcare provider or hospital has a contract with your health plan and is billing you more than that contract allows. In emergencies (with the exception of ground ambulance charges), or situations in which you go to an in-network hospital but unknowingly receive services from an out-of-network provider.

In the first three cases, the agreement between the healthcare provider and Medicare, Medicaid, or your insurance company includes a clause that prohibits balance billing.

For example, when a hospital signs up with Medicare to see Medicare patients, it must agree to accept the Medicare negotiated rate, including your deductible and/or coinsurance payment, as payment in full. This is called accepting Medicare assignment.

And for the fourth case, the No Surprises Act, which took effect in 2022, protects you from “surprise” balance billing.

Balance billing is usually legal:

When you choose to use a healthcare provider that doesn’t have a relationship or contract with your insurer (including ground ambulance charges, even after implementation of the No Surprises Act). When you’re getting services that aren’t covered by your health insurance policy, even if you’re getting those services from a provider that has a contract with your health plan.

The first case (a provider not having an insurer relationship) is common if you choose to seek care outside of your health insurance plan’s network. Depending on how your plan is structured, it may cover some out-of-network costs on your behalf. But the out-of-network provider is not obligated to accept your insurer’s payment as payment in full. They can send you a bill for the remainder of the charges, even if it’s more than your plan’s out-of-network copay or deductible. (Some health plans, particularly HMOs and EPOs, simply don’t cover non-emergency out-of-network services at all, which means they would not cover even a portion of the bill if you choose to go outside the plan’s network.)

Getting services that are not covered is a situation that may arise, for example, if you obtain cosmetic procedures that aren’t considered medically necessary, or fill a prescription for a drug that isn’t on your health plan’s formulary. You’ll be responsible for the entire bill, and your insurer will not require the medical provider to write off any portion of the bill—the claim would simply be rejected.

Prior to 2022, it was common for people to be balance billed in emergencies or by out-of-network providers that worked at in-network hospitals. In some states, state laws protected people from these types of surprise balance billing if they had state-regulated health plans. But most people with employer-sponsored health insurance are covered under self-insured plans, which are not subject to state regulations. This is why the No Surprises Act was so necessary.

How Balance Billing Works

When you get care from a doctor, hospital, or other healthcare provider that isn’t part of your insurer’s provider network (or, if you have Medicare, from a provider that has opted out of Medicare altogether, which is rare but does apply in some cases), that healthcare provider can charge you whatever he or she wants to charge you (with the exception of emergencies or situations where you receive services from an out-of-network provider while you’re at an in-network hospital).

Since your insurance company hasn’t negotiated any rates with that provider, he or she isn’t bound by a contract with your health plan.

If your health insurance company agrees to pay a percentage of your out-of-network care, the health plan doesn’t pay a percentage of what’s actually billed. Instead, it pays a percentage of what it says should have been billed, otherwise known as a reasonable and customary amount.

This 15% cap is known as the limiting charge, and it serves as a restriction on balance billing in some cases. If your healthcare provider has opted out of Medicare entirely, they cannot bill Medicare at all and you’ll be responsible for the full cost of your visit.

As you might guess, the reasonable and customary amount is usually lower than the amount you’re actually billed. The balance bill comes from the gap between what your insurer says is reasonable and customary, and what the healthcare provider or hospital actually charges.

Example

Let’s take a look at an example in which a person’s health plan has 20% coinsurance for in-network hospitalization and 40% coinsurance for out-of-network hospitalization. And we’re going to assume that the No Surprises Act does not apply (ie, that the person chooses to go to an out-of-network hospital, and it’s not an emergency situation).

In this scenario, we’ll assume that the person already met their $1,000 in-network deductible and $2,000 out-of-network deductible earlier in the year (so the example is only looking at coinsurance).

And we’ll also assume that the health plan has a $6,000 maximum out-of-pocket for in-network care, but no cap on out-of-pocket costs for out-of-network care:

If you have Medicare and your healthcare provider has opted out of Medicare entirely, you’re responsible for paying the entire bill yourself. But if your healthcare provider hasn’t opted out but just doesn’t accept assignment with Medicare (ie, doesn’t accept the amount Medicare pays as payment in full), you could be balance billed up to 15% more than Medicare’s allowable charge, in addition to your regular deductible and/or coinsurance payment.

Surprise Balance Billing

Receiving care from an out-of-network provider can happen unexpectedly, even when you try to stay in-network. This can happen in emergency situations—when you may simply have no say in where you’re treated or no time to get to an in-network facility—or when you’re treated by out-of-network providers who work at in-network facilities.

For example, you go to an in-network hospital, but the radiologist who reads your X-rays isn’t in-network. The bill from the hospital reflects the in-network rate and isn’t subject to balance billing, but the radiologist doesn’t have a contract with your insurer, so he can charge you whatever he wants. And prior to 2022, he was allowed to send you a balance bill unless state law prohibited it.

Similar situations could arise with:

AnesthesiologistsPathologists (laboratory doctors)Neonatologists (doctors for newborns)Intensivists (doctors who specialize in ICU patients)Hospitalists (doctors who specialize in hospitalized patients)Radiologists (doctors who interpret X-rays and scans)ER doctorsAmbulance services to get you to the hospital, especially air ambulance services, where balance billing was frighteningly commonDurable medical equipment suppliers (companies that provide the crutches, braces, wheelchairs, etc. that people need after a medical procedure)

Surprise balance billing could also happen for services received from a provider chosen by someone else, such as when you have a pap smear or a biopsy done in your healthcare provider’s office, or blood drawn by your home health nurse. If your healthcare provider or nurse sends the specimen to an out-of-network lab, that lab can balance bill you.

These “surprise” balance billing situations are particularly infuriating for patients, who often believe that as long as they’ve selected an in-network medical facility, all of their care will be covered under the in-network terms of their health plan.

To address this situation, many states enacted consumer protection rules that limited surprise balance billing prior to 2022. But as noted above, these state rules don’t protect people with self-insured employer-sponsored health plans, which cover the majority of people who have employer-sponsored coverage.

There had long been broad bipartisan support for the idea that patients shouldn’t have to pay additional, unexpected charges just because they needed emergency care or inadvertently received care from a provider outside their network, despite the fact that they had purposely chosen an in-network medical facility. There was disagreement, however, in terms of how these situations should be handled—should the insurer have to pay more, or should the out-of-network provider have to accept lower payments? This disagreement derailed numerous attempts at federal legislation to address surprise balance billing.

But the Consolidated Appropriations Act, 2021, which was enacted in December 2020, included broad provisions (known as the No Surprises Act) to protect consumers from surprise balance billing as of 2022. The law applies to both self-insured and fully-insured plans, including grandfathered plans, employer-sponsored plans, and individual market plans.

It protects consumers from surprise balance billing charges in nearly all emergency situations and situations when out-of-network providers offer services at in-network facilities, but there’s a notable exception for ground ambulance charges. This is still a concern, as ground ambulances are among the medical providers most likely to balance bill patients and least likely to be in-network, and patients typically have no say in what ambulance provider comes to their rescue in an emergency situation. But other than ground ambulances, patients are no longer subject to surprise balance bills as of 2022.

Balance billing continues to be allowed in other situations (for example, the patient simply chooses to use an out-of-network provider). Balance billing can also still occur when you’re using an in-network provider, but you’re getting a service that isn’t covered by your health insurance. Since an insurer doesn’t negotiate rates for services it doesn’t cover, you’re not protected by that insurer-negotiated discount. The provider can charge whatever he or she wishes, and you’re responsible for the entire bill.

Balance billing doesn’t usually happen with in-network providers or providers that accept Medicare assignment. That’s because if they balance bill you, they’re violating the terms of their contract with your insurer or Medicare. They could lose the contract, face fines, suffer severe penalties, and even face criminal charges in some cases.

If You Get an Unexpected Balance Bill

Receiving a balance bill is a stressful experience, especially if you weren’t expecting it. You’ve already paid your deductible and coinsurance and then you receive a substantial additional bill—what do you do next?

First, you’ll want to try to figure out whether the balance bill is legal or not. If the medical provider is in-network with your insurance company, or you have Medicare or Medicaid and your provider accepts that coverage, it’s possible that the balance bill was a mistake (or, in rare cases, outright fraud).

And if your situation is covered under the No Surprises Act (ie, an emergency, or an out-of-network provider who treated you at an in-network facility), you should not be subject to a balance bill. But there could be some hiccups with the transition to these new rules in 2022, so be sure you understand what charges you’re actually responsible for before paying any medical bills.

If the medical provider’s office clarifies that the balance bill was not an error and that you do indeed owe the money, consider the situation—did you make a mistake and select an out-of-network healthcare provider? Or was the service not covered by your health plan?

If you went to an in-network facility for a non-emergency, did you waive your rights under the No Surprises Act (NSA) and then receive a balance bill from an out-of-network provider? This is still possible in limited circumstances, but you would have had to sign a document indicating that you had waived your NSA protections.

Negotiate With the Medical Office

If you’ve received a legitimate balance bill, you can ask the medical office to cut you some slack. They may be willing to agree to a payment plan and not send your bill to collections as long as you continue to make payments.

Or they may be willing to reduce your total bill if you agree to pay a certain amount upfront. Be respectful and polite, but explain that the bill caught you off guard, and if it’s causing you significant financial hardship, explain that too.

The healthcare provider’s office would rather receive at least a portion of the billed amount rather than having to wait while the bill is sent to collections, so the sooner you reach out to them, the better.

Negotiate With Your Insurance Company

You can also negotiate with your insurer. If your insurer has already paid the out-of-network rate on the reasonable and customary charge, you’ll have difficulty filing a formal appeal since the insurer didn’t actually deny your claim. It paid your claim, but at the out-of-network rate.

Instead, request a reconsideration. You want your insurance company to reconsider the decision to cover this as out-of-network care, and instead cover it as in-network care. You’ll have more luck with this approach if you had a compelling medical or logistical reason for choosing an out-of-network provider.

You can get information about your insurer’s complaint resolution process in your benefits handbook or from your human resources department. If this doesn’t resolve the problem, you can complain to your state’s insurance department. Find contact information for your Department of Insurance by clicking your state on this map.

If your health plan is self-funded, meaning your employer is the entity actually paying the medical bills even though an insurance company may administer the plan, then your health plan won’t fall under the jurisdiction of your state’s department of insurance.

Self-funded plans are instead regulated by the Department of Labor’s Employee Benefit Services Administration. Get more information from the EBSA’s consumer assistance web page or by calling an EBSA benefits advisor at 1-866-444-3272.

If You Know You’ll Be Legally Balance Billed

If you know in advance that you’ll be using an out-of-network provider or a provider that doesn’t accept Medicare assignment, you have some options. However, none of them are easy and all require some negotiating.

Ask for an estimate of the provider’s charges. Next, ask your insurer what they consider the reasonable and customary charge for this service to be. Getting an answer to this might be tough, but be persistent.

Ask the provider if he or she will accept your insurance company’s reasonable and customary rate as payment in full. If so, get the agreement in writing, including a no-balance-billing clause.

If your provider won’t accept the reasonable and customary rate as payment in full, start working on your insurer. Ask your insurer to increase the amount they’re calling reasonable and customary for this particular case.

Present a convincing argument by pointing out why your case is more complicated, difficult, or time-consuming to treat than the average case the insurer bases its reasonable and customary charge on.

Single-Case Contract

Another option is to ask your insurer to negotiate a single-case contract with your out-of-network provider for this specific service.

A single-case contract is more likely to be approved if the provider is offering specialized services that aren’t available from locally-available in-network providers, or if the provider can make a case to the insurer that the services they’re providing will end up being less expensive in the long-run for the insurance company.

Sometimes they can agree upon a single-case contract for the amount your insurer usually pays its in-network providers. Sometimes they’ll agree on a single-case contract at the discount rate your healthcare provider accepts from the insurance companies she’s already in-network with.

Or, sometimes they can agree on a single-case contract for a percentage of the provider’s billed charges. Whatever the agreement, make sure it includes a no-balance-billing clause.

Ask for the In-Network Coinsurance Rate

If all of these options fail, you can ask your insurer to cover this out-of-network care using your in-network coinsurance rate. While this won’t prevent balance billing, at least your insurer will be paying a higher percentage of the bill since your coinsurance for in-network care is lower than for out-of-network care.

If you pursue this option, have a convincing argument as to why the insurer should treat this as in-network. For example, there are no local in-network surgeons experienced in your particular surgical procedure, or the complication rates of the in-network surgeons are significantly higher than those of your out-of-network surgeon.

Summary

Balance billing refers to the additional bill that an out-of-network medical provider can send to a patient, in addition to the person’s normal cost-sharing and the payments (if any) made by their health plan. The No Surprises Act provides broad consumer protections against “surprise” balance billing as of 2022.

A Word From Verywell

Try to prevent balance billing by staying in-network, making sure your insurance company covers the services you’re getting, and complying with any pre-authorization requirements. But rest assured that the No Surprises Act provides broad protections against surprise balance billing as of 2022 (starting whenever your health plan renews in 2022; in most cases, that was January 1, but your plan might have a different renewal date).

This means you won’t be subject to balance bills in emergencies (except for ground ambulance charges, which can still generate surprise balance bills) or in situations where you go to an in-network hospital but unknowingly receive care from an out-of-network provider.

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