Skip to content

Balance Billing Patients under the Terms and Conditions of the CARE Act’s Provider Relief Fund

April 28, 2020

Starting on April 10, 2020, the Department of Health and Human Services (“HHS”) began distributing the $100 billion of funds allocated under the CARE Act.  $30 billion of the funds were distributed through the Provider Relief Fund to healthcare providers based upon their pro rata share of the 2019 Medicare Fee-For-Service.  As a condition of receipt of these funds, HHS required certain Terms and Conditions to be completed on an online portal along with the submission of reports by providers on the funds’ usage.  Providers that do not wish to participate or agree to the Terms and Conditions need to contact HHS and agree to return of the distributed funds.

Both the Terms and Conditions for the initial $30 billion dollar distribution[1] and the subsequent $20 billion dollar distribution[2] require an out-of-network provider of care to a presumptive or actual COVID-19 patient to waive their out-of-network patient responsibility and only charge the patient their in-network responsibility. HHS amended the Terms and Conditions regarding patient billing to include presumptive COVID-19 patients as opposed to possible COVID-19 patients because guidance on its website initially indicated HHS would take the broadest view possible that every patient was a “possible” COVID-19 patient. 

While further specific guidance on the matter from HHS was not forthcoming, the updated Terms and Conditions clarify that the “surprise billing ban” does not apply to all patient care, but just treatment related to COVID-19.  Therefore, elective orthopedic surgeries and/or other procedures unrelated to diagnosing and treating COVID-19 can still be subject to billing and collecting the patient’s out-of-network deductible, co-insurance, and/or other responsibility.  It is important to keep track of updates to the Terms and Conditions as well as any additional statutory or regulatory bans that might be implemented at the federal and state levels related to balance billing as balance billing reform and ending “surprise billing” was a high issue of concern by both parties well before the COVID-19 pandemic.

However, it is more important to remember that as of January 1, 2020, the State of Texas implemented its own balance billing prohibition that remains in effect during the COVID-19 public health emergency.  As part of this state-wide health care reform, heath plans insurers are required to identify for the out-of-network provider on the patient’s Explanation of Benefits the amount of the patient’s deductible, co-insurance, and other financial responsibility that can be collected directly from the out-of-network patient.  Without obtaining the out-of-network’s patient’s consent and waiver as required by the Texas Department of Insurance, a Texas out-of-network provider cannot “balance bill” the patient and attempt to collect its billed charges that were not paid for through the patient’s health plan and the identified patient’s financial responsibility on the Explanation of Benefits. 

If you have questions about your own practice’s acceptance of the Provider Relief Funds, your practice’s patient billing and collection efforts generally, or if you are subject to an audit from Medicare, Novitas, or a private health plan for claims submitted and paid during this public health crisis, please reach out to Chris Reed ( or 214-705-3935) or any of the health care attorneys here for more information.