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Did HHS Just Ban All Surprise Billing During The COVID-19 Pandemic?

Andrew Silverio, Esq.

Apologies for the attention-grabbing headline, but no, as good as that would be for payers, it didn’t.  However, Kaiser Health News recently ran a story, which was also picked up by NPR, speculating that this is precisely what had occurred. The article, which ran on April 17, 2020, discussed the terms and conditions placed on providers who receive funds from the Public Health and Social Services Emergency Relief Fund under Public Law 116-136, one of which states that “… for all care for a presumptive or actual case of COVID-19, Recipient certifies that it will not seek to collect from the patient out-of-pocket expenses in an amount greater than what the patient would have otherwise been required to pay if the care had been provided by an in-network Recipient.”

For its expansive reading of this seemingly limited prohibition on balance-billing, KHN points to a statement on an explanatory HHS website (the article links to https://www.hhs.gov/provider-relief/index.html) stating that “HHS broadly views every patient as a possible case of COVID-19.”  The rationale then, is that if providers can’t balance bill COVID-19 patients, and every patient is a COVID-19 patient, then providers can’t balance bill anyone.  However, as noted above, the actual requirement in the provider “Acceptance of Terms and Conditions” (available at https://www.hhs.gov/sites/default/files/relief-fund-payment-terms-and-conditions.pdf) applies to “…all care for a presumptive or actual case of COVID-19.”  Even if every patient is a “presumptive” COVID-19 patient, it is simply not the case that all treatment is treatment for a COVID-19 case.

As beneficial as a broader interpretation of this guidance could be for payers, we would not advise payers to rely on it as it is simply not supported by the terms of the provider Terms and Conditions or consistent with the past positions of HHS.  First, note that the “every patient” language was found in explanatory public HHS guidance online, not the actual Terms and Conditions.  Additionally, as of April 24, 2020, that language appears to have been removed (perhaps due to the potential for misinterpretation, but that is of course speculation).  The link cited by the KHN article now redirects to https://www.hhs.gov/coronavirus/cares-act-provider-relief-fund/index.html, which as of April 24, 2020 does not contain the “every patient” language and states that its content was last reviewed on April 24, 2020. 

As the legal landscape around COVID-19 continues to rapidly develop, as always, don’t hesitate to contact us with any questions.