Earlier this year, lawmakers warned representatives from Virginia’s hospitals and health plans that if they didn’t find a solution to balance billing, the General Assembly would.

And with a handful of bills filed, legislators appear eager to tackle the problem head-on this session.

Balance billing occurs when an out-of-network provider bills a patient for whatever their insurance company won’t pay. It often happens unexpectedly, such as in cases when patients don’t think to ask whether the anesthesiologist working on their surgery is covered in their network, or if they visit an in-network hospital in an emergency without knowing that the hospital contracts with out-of-network physicians.

The practice has increasingly receiving national attention as more and more patients deal with the problem. Virginia isn’t immune: Lawmakers say they’ve been increasingly hearing from constituents about exorbitant, surprise health bills.

“We’ve heard from more and more people that have been victims of surprise balance billing,” said Del. Kathy Byron, R-Bedford. “I call them victims because there have been some incredible stories of financial distress.”

Several of the bills filed so far deal with the particular challenge of balance billing in emergency situations, when patients are usually ill-equipped to stop and ask a doctor if they’re in network, and doctors rarely have time to figure it out, either.

Byron, as well as Del. R. Lee Ware, R-Powhatan; Sen. Ryan McDougle, R-Hanover; and Sen. Frank Wagner, R-Virginia Beach, have filed bills to address the issue. Each would ensure that a patient does not receive a balance bill in emergency situations, but differ slightly in the calculation of how much the out-of-network providers should actually be paid.

Money was the sticking point earlier this year, as well, when the Health Insurance Reform Commission asked insurers and providers — such as hospitals and emergency room physicians — to come up with a balance-billing solution. They came back to the commission in October in agreement that the patient shouldn’t be caught in the middle, but differed on how much the doctors should actually be paid.

That difference seems likely to come to the fore in discussions of the topic this session, as well.

Ware’s bill, for example, recommends that the physician be paid “the fair market value” for the emergency services, which is based on how much “similar providers for comparable out-of-network emergency services” in the area are compensated. The state’s Bureau of Insurance would determine the reimbursement amount when it is under dispute, according to Wagner’s bill. And Byron’s bill calculates the payment simply as the average of the commercial rates that the insurer pays to other providers in the region.

“If you do an average rate based on rates that are already out there, then I think you’re being fair because you’re not affecting the insurance company’s negotiation, yet you also aren’t having a government authority coming up with a fictitious rate that we need to keep going back and changing,” Byron said.

In figuring out the rate, the challenge for health plans is that paying emergency physicians more than what other in-network providers make means everyone would want more, said Doug Gray, executive director of the Virginia Association of Health Plans.

“We would end up having to pay more, and the premium payers would have to pay it,” he said. “Our point is that if you’re going to try to solve the problem of people being balance billed and taken advantage of, increasing the amount that’s paid for the visit isn’t going to help, it’s going to make it worse.”

Dr. Trisha Anest, an emergency room physician with Bon Secours Mary Immaculate Hospital and a member of the Virginia College of Emergency Physicians, said that physicians in the ER are in a unique position because they have to provide care to everyone who walks through their door, regardless of their coverage.

“Insurers have exploited this a little bit in knowing we will provide the care regardless of what they end up paying us in the end,” she said. “In order to keep emergency departments functioning and fully staffed, we have to make sure we have fair payment for the care.”

Transparency

For most patients, balance billing is just one of the many grievances they have with the health care system. Sen. Amanda Chase, R-Chesterfield, has filed a bill to address another.

“If you go to Walmart or Macy’s or Firestone Tire, any place for services or products, you know before you make the purchase how much it’s going to cost,” Chase said. “In any other industry, this is considered best practice — except for health care.”

Chase’s bill would require doctors to give their patients an estimate of what they’re expected to pay for a procedure or test at least three days ahead of time. According to the bill’s language, the state currently only requires hospitals to provide advance notice.

Del. Mark Levine, D-Alexandria, has filed a similar bill that would require the doctor or hospital give the patient a payment estimate no less than a week after scheduling the service.

The point, Chase explained, is to give patients the information they need to make educated decisions about their health care, possibly even shopping around if the price is too high.

“I think that’s how we ultimately address a lot of the health care issues that we have,” Chase said. “Transparency is going to allow people to shop around for better prices and that will, in my opinion, drive down the cost of health care.”