On March 27, 2020, the President signed into law the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”). The CARES Act has many components, one of which was to make $175 billion in Provider Relief Funds available to hospital facilities and other medical providers. To use the funds, the hospitals and providers must agree to certain terms and conditions, including terms and conditions relating to balance billing:
Recipients/providers must not to seek collection of out-of-pocket payments from a presumptive or actual COVID-19 patient that are greater than what the patient would have otherwise been required to pay if the care had been provided by an in-network provider.
Recipients/providers must abstain from "balance billing" any COVID-related treatment/any uninsured patient for whom the provider seeks reimbursement for COVID-19-related treatment.
The balance billing prohibitions raise many questions. Who is a “presumptive COVID-19 patient?” According to the CARES Act Provider Relief Fund: FAQs on the Department of Health and Human Services website, a “presumptive case of COVID-19 is a case where a patient’s medical record documentation supports a diagnosis of COVID-19, even if the patient does not have a positive in vitro diagnostic test result in his or her medical record.” Does that mean that the medical record needs to contain information that the patient was around an “actual COVID-19 patient” or is it enough that the patient has symptoms similar to someone who is an “actual COVID-19 patient?” What happens if a “presumptive COVID-19 patient” later tests negative for COVID-19?
Under what situations can a provider balance bill? If a hospital or medical provider did not receive Provider Relief Funds, it is not prohibited from balance billing. A medical provider that did not attest to receiving a payment from the Provider Relief Fund can balance bill for his services even if the services are provided at a hospital facility that received funds and agreed to the terms and conditions. State balance billing laws may prohibit balance billing in these circumstances, but the CARES Act does not. Other situations where a balance bill is permissible under the CARES Act will likely arise.
The FAQs, guidelines and terms and conditions continue to change. Already, the Department of Health and Human Services has narrowed the protection from “possible” cases to “presumptive” cases. Will the Department of Health and Human Services continue to narrow the protection? Will the Department of Health and Human Services provide more detailed guidance or, better yet, promulgate rules and regulations? We will have to wait and see.