How to Recognize and Respond to Balance Billing

Written by Nick Marrone, Esq.

Edited by Rachel Riordan, Esq.

Probably every adjuster has come across a provider application filed by the medical provider of a claimant. Under the Virginia Workers’ Compensation Act (“the Act”), if a provider disputes the amount an insurer has paid for a medical bill or claims the insurer has not paid anything towards the bill, the provider can independently file a claim with the Commission seeking payment from the insurer. The provider’s claim (e.g., the provider application) is filed under the claimant’s Jurisdiction Claim Number. When the application refers to treatment that has occurred from July 1, 2014 or later it must be filed within one year of the date the provider last received payment or within one year of the date the medical award covering the date of service of a contested billing becomes final. See Virginia Code § 65.2-605.1(F).

But what happens when a claimant files a claim for benefits seeking payment of unpaid medical bills from a provider? I am not talking about a claim for out-of-pocket expenses, but a claim filed that seeks the balance due to a medical provider which the insurer disputes. If such a claim is filed should the adjuster pay the claimant the balance due to the provider? Should the adjuster pay the balance to the provider directly? The adjuster should do neither. The provider that seeks the balance of a bill from a claimant is acting in violation of the Act; they are committing what is called “balance billing”.

Under § 65.2-714(D) of the Act a medical provider may not bill a claimant for the balance of their bills if (1) a claim for benefits has been filed by or on behalf of the claimant, (2) partial payment has been made to the provider by the insurer for the disputed bill, or (3) an award of compensation has been entered by the Commission on behalf of the claimant. If the provider bills the claimant despite one or more of these conditions being met then the provider is improperly “balance billing” the claimant. Despite the Act not allowing this practice, if a claimant files a claim for benefits seeking payment of unpaid medical bills from a provider the Commission will still refer the claim for a hearing even if the sole claim being made by the claimant is for the unpaid bill!

So what should be done? In my experience with these types of claims I have been sure to put the Commission on notice that the claim is improper. When a claim like this is filed, I immediately file a response that seeks to dismiss the claim on the basis that the provider is improperly “balance billing” the claimant and that the provider should be filing a provider application. While the Commission has thus far refused to dismiss the claim before hearing, I have had success getting the claim dismissed at the hearing. In one case, the Deputy Commissioner then issued a cease and desist order to the provider advising that their practice of “balance billing” the claimant was a violation of law.

So if a claim like this comes across your desk don’t panic and don’t be confused! Be sure not to pay the provider. If you do you may extend the statute of limitations noted in § 65.2-605.1(F) for the provider to file that provider application. Also, be sure not to pay the claimant either. The claimant is not entitled to the balance of the bill and there is certainly no guarantee the claimant will turn around and reimburse the provider if you do pay them the balance. If a claim like this comes to you then aggressively defend against the claim, put the Commission on notice that the provider is “balance billing” in violation of the Act, and be sure that counsel moves for the claim to be dismissed at hearing.

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