The hospital was on your plan's list. The psychiatrist who saw you on the unit, it turns out, was not, and their bill has arrived separately, at a number the hospital's never reached. This is the bill two different laws were written to stop.
The short answer: in nearly every case, no — you owe in-network cost sharing and nothing more. Under federal law, an emergency medical condition expressly includes "a mental health condition or substance use disorder," and a nonparticipating emergency facility or provider "must not bill, and must not hold liable" the patient for more than in-network cost sharing;¹ ² care after you are stabilised, during the same stay, counts as emergency care until specific conditions are met.² For non-emergency care at an in-network facility, an out-of-network provider may not bill you more than in-network cost sharing unless they gave you written notice and you consented in advance — and for some services, including those of hospitalists, and for "unforeseen, urgent medical needs," consent is not permitted at all.³ California's own statute, for plans regulated by the state, says an enrollee treated by a noncontracting professional at a contracting facility "shall pay no more than the same cost sharing that the enrollee would pay for the same covered services received from a contracting individual health professional," with a consent exception that requires at least 24 hours' notice on a separate document, and refunds of any overpayment within 30 days with interest.⁴
Two laws, one answer
Federal — the No Surprises Act, in force for plan years from 1 January 2022, covers most employer plans, marketplace plans and individual policies, including self-funded employer plans that state law cannot reach.¹ ² ³ It does not govern Medicare or Medi-Cal, which have their own rules.
California — Health and Safety Code §1371.9, in force for contracts from 1 July 2017, covers plans regulated by the Department of Managed Health Care and, through a parallel section of the Insurance Code, insurers regulated by the Department of Insurance.⁴ ⁶ It is the stricter of the two on the consent exception and on collections, and where both apply the stricter rule governs.
Which one you cite depends on your card. A state-regulated HMO or PPO: both. A self-funded employer plan (ask HR, or look for "administered by" rather than "insured by" on the card): the federal law. Medi-Cal: a different page. Retroactive Medi-Cal and provider billing limits →
If it was an emergency
The federal definition of "emergency medical condition" is written to include a psychiatric crisis: "a medical condition, including a mental health condition or substance use disorder, manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent layperson ... could reasonably expect the absence of immediate medical attention to result in" serious jeopardy to health.¹ Emergency services include the screening and stabilising treatment in an emergency department — including an "independent freestanding emergency department" — and, critically, items and services furnished "after the participant, beneficiary, or enrollee is stabilized and as part of outpatient observation or an inpatient or outpatient stay" arising from that visit.¹
For all of that, a nonparticipating provider or facility "must not bill, and must not hold liable, the participant, beneficiary, or enrollee for a payment amount" above in-network cost sharing.² Post-stabilisation care stops being emergency care only when the attending emergency physician or treating provider determines you can travel by non-medical or non-emergency transport to an in-network provider within a reasonable distance, and you are given the notice-and-consent paperwork, and you sign it, and state law permits.² A psychiatric admission that follows an emergency-department evaluation is, until each of those has happened, inside the protection.
If it was scheduled
For non-emergency care at an in-network hospital, hospital outpatient department or ambulatory surgical centre, an out-of-network provider may bill only in-network cost sharing unless it followed the notice-and-consent procedure: written notice, on a separate document, "not later than 72 hours prior" to the service — or, where the appointment was made less than 72 hours ahead, on the day it is scheduled, and where notice is given on the day of the service, "no later than 3 hours prior."³ And for a list of "ancillary services" consent is never permitted — emergency medicine, anaesthesiology, pathology, radiology, neonatology, the services of assistant surgeons, hospitalists and intensivists, diagnostic services, and any service where no in-network provider could have furnished it at the facility — nor for items and services for "unforeseen, urgent medical needs that arise at the time an item or service is furnished," which the rule treats as a separate category.³ A hospitalist who managed your admission, or a psychiatrist called in for an urgent need on the unit, is on that list.
California's rule for state-regulated plans is tighter still: the consent exception exists only for an enrollee whose plan includes out-of-network benefits — a closed-network HMO member cannot be balance-billed even with consent — and the consent must be given at least 24 hours in advance, on a document separate from any admission paperwork, with a written estimate of the cost and a statement that an in-network provider would cost less.⁴
What the provider owes you if it overcharged
Under §1371.9, a noncontracting professional who has collected more than in-network cost sharing must refund the overpayment within 30 calendar days, pays 15 percent annual interest on what it fails to refund, may not report the amount to a credit agency, may not pursue civil collection for at least 150 days, and may not garnish wages or place a lien on a primary residence.⁴ Those are the sentences to quote in the letter.
What to do with the bill
- Do not pay it yet. Ask the plan for the explanation of benefits for the same date; the in-network cost sharing on it is what you owe.
- Write to the provider — one paragraph: the facility was in network, the service was emergency (or non-emergency without the required notice and consent), federal law and, if applicable, Health and Safety Code §1371.9 limit the bill to in-network cost sharing; please reissue.
- Complain if it does not budge. For a state-regulated plan, the Department of Managed Health Care's Help Center. For any plan, the federal No Surprises Help Desk at 1-800-985-3059 or cms.gov/nosurprises.⁵ How to file a DMHC complaint →
- The ambulance is a separate statute with its own rules. What can an ambulance charge after a 5150? →
Q&A
Q: I signed a lot of forms at admission. Did I consent? A: Not lawfully, unless the consent was on a separate document given in advance — 72 hours federally, 24 hours under California's rule — with a cost estimate; and for emergency care, and for hospitalists and urgent needs, no consent counts at all.² ³ ⁴
Q: My employer's plan is self-funded. Does California's law help me? A: State law does not reach self-funded plans, but the federal No Surprises Act does, with the same in-network cost-sharing rule.² ³
Q: The provider has already sent it to collections. A: Under California's rule for state-regulated plans, civil collection may not begin for at least 150 days and no credit report may be made; either is a complaint in its own right.⁴
Q: Does this cover the therapist I saw as an outpatient after discharge? A: No. Outpatient care you chose from an out-of-network clinician is billed at out-of-network rates; the protections are for emergency care and for out-of-network providers inside an in-network facility.² ³ ⁴ In-network vs. out-of-network →
Our therapist directory: See its current status →
Sources
45 C.F.R. §149.110(c) — "emergency medical condition" means "a medical condition, including a mental health condition or substance use disorder, manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent layperson ..."; "emergency services" including an "independent freestanding emergency department" and items and services furnished "after the participant, beneficiary, or enrollee is stabilized and as part of outpatient observation or an inpatient or outpatient stay" — law.cornell.edu.
45 C.F.R. §149.410 — a nonparticipating emergency facility or provider "must not bill, and must not hold liable, the participant, beneficiary, or enrollee for a payment amount" above the in-network cost-sharing requirement; the conditions under which post-stabilisation services cease to be emergency services; applicability to plan years beginning on or after 1 January 2022 — law.cornell.edu.
45 C.F.R. §149.420 — the non-emergency rule at a participating facility; the "ancillary services" for which notice and consent are not permitted, including hospitalists and intensivists, and the separate category of "unforeseen, urgent medical needs that arise at the time an item or service is furnished"; notice "not later than 72 hours prior" or, for short-notice appointments, "no later than 3 hours prior" — law.cornell.edu.
Cal. Health & Safety Code §1371.9 — an enrollee "shall pay no more than the same cost sharing that the enrollee would pay for the same covered services received from a contracting individual health professional"; the consent exception, available only where the plan includes out-of-network benefits (at least 24 hours in advance, a separate document, a written estimate, notice that an in-network provider costs less); the 30-day refund, 15 percent interest, no credit reporting, no civil collection for 150 days, no wage garnishment or lien on a primary residence; contracts on or after 1 July 2017 — california.public.law.
Centers for Medicare & Medicaid Services, No Surprises Act: What are my rights? — protection for "Emergency room visits" and "Non-emergency care related to a visit to an in-network hospital, hospital outpatient department, or ambulatory surgical center"; the No Surprises Help Desk, 1-800-985-3059 — cms.gov.
Cal. Insurance Code §10112.8(a)(1) — the parallel rule for insurers: "the insured shall pay no more than the same cost sharing that the insured would pay for the same covered services received from a contracting individual health professional" — california.public.law.
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