Experts warn of surprise-billing law 'loophole' that saddled a pregnancy patient with six-figure hospital bill

Experts are advising consumers to be wary of a surprise-billing law "loophole" that resulted in one couple receiving an unexpected six-figure medical bill last summer, Kaiser Health News reported Tuesday.

"Danielle had an emergency and [her insurance company] Regence [BlueShield] acknowledges it was an emergency, so she cannot be balance-billed," Stephanie Marquis, public affairs director for the Washington state Office of the Insurance Commissioner, told KHN.

Danielle Laskey, 31, was balance-billed, however, to the tune of $121,887.87.

For the Laskeys, who eventually prevailed in their battle with the insurance company, it largely came down to definitions of the following terms: "out of network" and "participating provider."

Laskey was urgently admitted to Seattle's Swedish Medical Center/First Hill for a pregnancy complication that resulted in a 51-day stay. The specialized clinic that sent her there, which admits only to Swedish, was covered under her insurance plan, Regence BlueShield.

Though the Laskeys thought Swedish was covered under their plan, it turns out that it wasn't. Regence first disputed that the admission was an emergency, but later relented, with a case manager telling the Laskeys that out-of-network charges would not apply. Regence shifted course once again, though, saying the admission did not count as an emergency since she was not admitted through the emergency department.

When it comes to emergencies, both federal and state laws bar insurers from billing patients for out-of-network charges.

A surprise medical bill is "an unexpected bill from an out-of-network provider or at an out-of-network facility," according to the Consumer Financial Protection Bureau. Effective January 1, 2022, the No Surprises Act was meant to protect consumers from such bills "under certain circumstances."

Among those "certain circumstances," the CFPB outlines, are "bills for most emergency services, even if you get them out-of-network and without approval beforehand" and "out-of-network cost-sharing (like out-of-network coinsurance or copayments) for most emergency and some non-emergency services."

When Kaiser Health News contacted Regence, the insurer laid out its explanation for the seemingly illegal bill. Though Swedish was out of network for Danielle's plan, Swedish was also contracted as a "participating provider." This nuance, according to Regence, gave the company cover as far as violating surprise-billing laws.

Swedish, the hospital, could bill Regence plan members a whopping 50% coinsurance with no out-of-pocket maximum since they had a broader contract with Regence as a "participating provider."

"Swedish straddled the line between being in and out of network — designations that traditionally indicate whether a provider has a contract with an insurer or not," KHN explained.

Evading surprise-billing laws via "participating provider" contracts presents a real conundrum for consumers, who may understandably believe emergency services will be covered by their insurance whether a facility is in-network or not.

The Laskeys appealed the bill and filed a complaint with the state insurance commissioner's office. Ultimately, Regence gave in and reclassified the provided services as in-network. Regence still, however, says it did not violate any surprise-billing laws.

The takeaway from the Laskeys' story, KHN says, is that even a year after the federal surprise-billing law took effect, patients might still get saddled with unexpected bills based on narrow provider networks and "ambiguities" about what constitutes an emergency.

Surprise-billing loopholes still exist, and the Laskeys fell into one.