Life & Health

Balance Billing

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If a health plan’s enrollee is treated by an out-of-network provider for emergency services or at an in-network facility for scheduled services covered by Virginia's balance billing law and rules, the provider or facility that is out-of-network will submit a claim to the enrollee's health plan.

The amount the health insurer pays the facility or provider must be a “commercially reasonable amount” based on payments for the same or similar services in a similar geographic area. If the health plan and the provider cannot agree on the amount, either party can start the arbitration process.

Commercially Reasonable Payments Data Set and Protocols

Who is protected by Virginia’s surprise balance billing law?

Fully-insured managed care plans issued in Virginia, including those bought through HealthCare.gov or Virginia's Insurance Marketplace
The Virginia state employee health plan
Self-funded group health plans that opt-in to Virginia’s protections

What health insurers must do

Base the insured’s cost-sharing responsibility on what they would pay an in-network provider or in-network facility in their area and show the amount on their Explanation of Benefits (EOB).
Count any amount the insured pays for emergency services or certain out-of-network services toward the insured’s in-network deductible and out-of-pocket limit.
Provide the names of providers, hospitals and facilities that are in network.
Provide notice to the insured of their rights under the balance billing law the person is protected by and the conditions when they can and cannot be balance billed.
- The U.S. Department of Health and Human Services (HHS) updated its model notice to consumers and requires the updated notice to be used beginning January 1, 2023. Insurers may use this updated notice (also in Spanish, Korean and Vietnamese) to satisfy both Virginia and federal requirements for coverage that falls under the protections of both Virginia and federal surprise balance billing laws.
  - The previous notice may be used during 2022, but beginning January 1, 2023, only the updated notice must be used.
Review the Market Conduct considerations concerning balance billing

What medical providers and facilities must do

Tell the insured which provider networks they participate in.
Refund any amount the insured overpays within 30 business days.
Provide notice to the insured of their rights under the balance billing law and the conditions when they can and cannot be balance billed.
- The U.S. Department of Health and Human Services (HHS) updated its model notice to consumers and requires the updated notice to be used beginning January 1, 2023. Providers may use this updated notice (also in Spanish, Korean and Vietnamese) to satisfy both Virginia and federal requirements for coverage that falls under the protections of both Virginia and federal surprise balance billing laws.
  - The previous notice may be used during 2022, but beginning January 1, 2023, only the updated notice must be used.
Not ask the insured to limit or give up these rights.

Reporting

Complaints may be emailed to bureauofinsurance@scc.virginia.gov using the Balance Billing Complaint Form.

Elective group health plans are plans that are self-funded and are not regulated by Virginia. In order to offer balance billing protections for their enrollees, the plan must opt-in to the balance billing law.

Search the list of elective group health plans

How to Opt-In to Balance Billing

To opt-in to the balance billing law, the elective group health plan or third-party administrator must complete and submit the online application at least 30 days prior to the effective date. The effective date must be either January 1 or the first day of the plan year.

Elective Group Health Plan Status Flow

When an application is received, it is placed in a ‘Submitted’ status.
Once an application is approved by BOI it is placed in a ‘Pending’ status.
Plans with an Effective Date after January 1, 2021 will remain in ‘Pending’ status until the plan year’s Effective Date.
For plans that provide a Termination Date, the plan is placed in ‘Expired’ status when that date is reached.

Update Elective Group Health Plan Opt-In information

If you need to make any changes to information previously submitted or to terminate your opt-in registration, send the Elective Group Health Plan Opt-in Change/Request for Termination Form to BBVA@scc.virginia.gov.

Communication to Elective Group Health Plans related to the Federal No Surprises Act

The process for arbitrating claims subject to Virginia’s balance billing law:

The insurer has 30 days to pay a claim received from an out-of-network provider. The insurer must pay the provider directly.
If the provider is not satisfied with the payment, the provider must notify the insurer in writing of the dispute within 30 days following the receipt of payment or notice of payment, whichever is earlier. The provider should use the appropriate contact identified on this managed care plan arbitration contact spreadsheet, if possible, to facilitate the good faith negotiation process.
If the insurer and out-of-network provider cannot agree on the payment amount for the service by the end of the good faith negotiation period (the 30-day period following the earlier of the carrier’s payment or notice of payment), one of the parties can request that the dispute be settled through arbitration.
Either party can start the arbitration process by emailing the Notice of Intent to Arbitrate Form to both BBVA@scc.virginia.gov and to the other party within 10 days of the end of the good faith negotiation period. Note that the good faith negotiation period must be completed before arbitration can be requested.

Limits for arbitration request filing and requirements for good faith negotiation and commercially reasonable payment are discussed in Administrative Letter 2021-04.

Balance Billing – Arbitration Process Power Point

Choosing an Arbitrator

To facilitate the process of choosing an arbitrator for the purpose of settling a balance billing dispute, the Bureau of Insurance will display a list of approved arbitrators and the fees charged by each arbitrator.

The Bureau does not set rates or compensate arbitrators on the list
The parties to arbitration split the cost, regardless of which party prevails

The parties must either notify the Bureau at BBVA@scc.virginia.gov that they chose an arbitrator from the list of approved arbitrators or notify the Bureau that they cannot decide.

If they cannot decide, the Bureau will provide a narrowed list
If there is still disagreement, the Bureau will decide on an arbitrator from the narrowed list

The arbitrator will determine the final payment amount the insurer or provider must accept by choosing one of the parties' best final offer.

Arbitrators must report their final decision to the parties. Use the Arbitrator Decision Reporting Form to report the decision and additional information to BBVA@scc.virginia.gov.

A data set of the services subject to Virginia’s law is available for insurers, providers and arbitrators as an independent source of claims payment information.

New Mandatory Arbitrator Training for Active Virginia Arbitrators

IMPORTANT: In order to maintain your active Arbitrator participation status in Virginia, the Bureau of Insurance requires you to:

Complete its Arbitrator Training held on Thursday, December 16, 2021.
- If you did not attend the live training event, you may watch the video recording of the training.
- If you experience any difficulty with the training video, email BBVA@scc.virginia.gov.
  - Training presentation slides
  - Training presentation transcript
Submit the Acknowledgement Form between December 16, 2021 and February 14, 2022 to BBVAARBCERT@scc.virginia.gov. If we do not receive the required, completed form timely, you may be unable to continue to serve as an arbitrator in Virginia.

We are not taking applications at this time. You can sign up to receive an email notification if we start accepting applications again.

Update Arbitrator Information

If you need to make any changes to the information submitted or to terminate your arbitrator registration, send the Arbitrator Change Request/Termination Request Form to BBVA@scc.virginia.gov.

For any additional questions, please email BBVA@scc.virginia.gov.

The data set was created in consultation with a work group that included representatives of medical providers, hospitals and insurers, and reviewed by the advisory committee that oversees the operation of Virginia’s All-Payer Claims Database.

The Commission contracted with Virginia Health Information (VHI) to prepare the data set to assist carriers, providers and arbitrators in determining commercially reasonable payments and resolving payment disputes for out-of-network services. The data set is not a required fee schedule.

The data set only includes services covered by the Virginia law, including emergency services at a hospital and non-emergency health care services provided to an enrollee at an in-network hospital or other in-network health care facility. Key services include:

Emergency department
Hospitalists
Pathology
Laboratory
Radiology
Anesthesiology

The data set, at its inception effective Jan. 1, 2021, must be based on the most recently available full calendar year of data, so claims are for services provided between Jan. 1 - Dec. 31, 2019. The calculations are drawn from commercial health plan claims and exclude Medicare and Medicaid claims, and claims paid on other than a fee-for-service basis. The data set includes the following amounts:

The median allowed amount (combined in- and out-of-network) from 2019 and updated each year using a Medical Consumer Price Index (CPI) adjustment.
The median billed amount (combined in- and out-of-network) from 2019 and updated each year using a Medical Consumer Price Index (CPI) adjustment.

Allowed amount is the sum of the amount paid by the payer and all enrollee cost-sharing.

In addition, the data set provides the calculations by geographic rating area, health planning region as commonly used by VHI in reporting, and statewide, except when suppressed if a field includes less than 30 claims.

Updates to the data set in subsequent years must be based on the original data set adjusted by the Medical CPI. The data set that is to be used for the upcoming year will be finalized and published by November 1^st. As required by Virginia law, VHI will update the data set to delineate between claims paid in-network versus out-of-network once that data is available.

Additional information about the data set methodology is found in the data set itself.

Requesting Necessary Updates to the Virginia Commercially Reasonable Payments Data Set

Necessary updates to the Virginia Commercially Reasonable Payments Data set are reviewed and implemented on an annual basis in accordance with Section 38.2-3445.03 of the Code of Virginia. Individuals and organizations can request necessary edits to be incorporated into the following year's data set between January 1st and June 1st of each calendar year. Requests should be limited to correction of errors or new or revised Codes. Otherwise, the original data set will be adjusted annually for inflation by applying the Consumer Price Index-Medical Component.

Any necessary update requests must be submitted by email to BBVADataset@scc.virginia.gov and contain the following pieces of information to be officially considered for review:

Email Title- [Correction/Code Removal/Code Addition] Request for VA Commercially Reasonable Payments Data Set by [Requestor Name] with [Requestor Organization]

Body of Email- The body of the update request email must contain details for the reasoning behind each request and include any specific codes requested to be added/deleted if applicable.

All submitted requests will be reviewed by the Bureau but are not guaranteed to be accepted. A summary of approved changes will be posted on this page once available.

Congress enacted the No Surprises Act in December 2020, as part of the Consolidated Appropriations Act of 2021 (CAA). This law applies even where the Virginia law may not apply.

Read about the new federal No Surprises Act (www.cms.gov)

Consumer notice

The Bureau has prepared a notice to inform consumers of their balance billing rights and protections. We intend for this notice to satisfy both the federal No Surprises Act and Virginia's laws. Carriers and providers should provide this notice to persons who are protected by both Virginia and federal surprise balance billing laws.

Virginia and Federal No Surprises Act consumer notice

Virginia and Federal Enforcement of the CAA

Virginia received the below letter that represents CMS’s understanding of the CAA provisions that Virginia will enforce versus the provisions that CMS will enforce, including the circumstances in which the federal independent dispute resolution process and the federal patient-provider dispute resolution process apply in Virginia, and in what circumstances. The Bureau of Insurance plans to release additional information that clarifies the points in this letter.

CAA Enforcement Letter for Virginia

Other Resources

The Future of Balance Billing in Virginia PowerPoint
Provider Bulletin
Application of Surprise Billing Law Chart