Don’t lose your balance: Balance billing and how not to break the law

The practice sounds simple enough, and in certain cases it can be perfectly legal. But balance billing is full of pitfalls, and mental health providers may not even be aware when they are engaging in illegal balance billing.

If you are a mental health clinician in a private practice, then you are probably not subject to many of the statutory requirements governing certain types of balance billing. For example, in New Hampshire, there are statutes that prevent surprise ambulance billing, set rates at which ambulance service providers can charge, and prevent certain balance billing by out-of-network providers at in-network facilities.

Nevertheless, there are additional laws affecting balance billing, which apply to all mental health providers, regardless of your practice setting.

A cardinal rule applies to all New Hampshire mental health clinicians: If you (or the person under whose credentials you bill) are credentialed with an insurer, you may not file a claim with the insurer and then balance-bill your patient — at least not beyond the amount you have agreed upon with the insurer, such as through a co-pay or co-insurance.

Take a look at your contract with the insurer, and you will see that it prohibits billing above your negotiated rate (“allowed amount” or “negotiated amount”) for psychotherapy services.

“My employer says my patient is OK with this payment arrangement.”

“It’s my supervisor who is actually billing for my services this way.”

“I work in a big agency, so the higher-ups must have worked this out with the insurer.”

These are all-too-common examples of how clinicians can inadvertently become complicit in their employer’s illegal balance billing for in-network services.

A client’s consent cannot erase the fraudulent nature of balance billing. And remember that illegal balance billing can and does occur as a large-scale operation. If you think your employer is illegally balance billing for your services, stop yourself before you say, “But I’m not responsible for how they operate.” It is not worth the risk of being embroiled in the steep fines, potential felony charges, and other serious legal consequences that could follow. Seek counsel about how to exit this difficult situation while protecting yourself, your license, and your clients.

Restrictions are not the same for out-of-network providers. But if this is you, and you balance-bill or operate under a private pay model, then know how the No Surprises Act applies to you, or risk severe legal consequences.

This federal law — now mirrored in many ways by state-based legislation — protects patients from unexpected high health care costs. It imposes several transparent billing requirements on providers, such as providing good faith estimates of costs to patients who may be responsible for costs of their care. Consult with a legal professional to gain a clear understanding of how to comply with the Act.

If billing is your least favorite part of your mental health practice, or if you worry about whether insurer reimbursement rates will keep you in the black, you are not alone. But illegal balance billing is not just unethical — it is not worth the risk. And a liability risk to you is also a risk to your ability to provide care.

Know the rules, know how to protect yourself from someone else’s illegal balance billing, and sleep easier having made the best decision for yourself and your patients.