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By Guest Author Teresa Kenyon, Esq. – Director of Lien Resolution for Synergy


The landscape of healthcare billing can be complex and confusing, both for healthcare providers and patients alike. When there is third party liability involved, such as in cases of accidents or injuries caused by someone other than the patient, the responsibility for billing insurance can become even more complex.  In these situations, a hospital may explore various avenues to determine the primary source of payment for the medical services provided. One common question that often arises is whether hospitals and healthcare providers are obligated to bill insurance, particularly government programs like Medicare or Medicaid. In this post, we will explore healthcare billing, the role of insurance, and the requirements associated with billing Medicare and Medicaid generally and in third party liability cases.

The Basics of Healthcare Billing

Healthcare billing is the process by which healthcare providers submit claims to insurance companies or government programs to receive payment for the services they render to patients. Health insurance, whether private or government-sponsored, plays a crucial role in covering medical expenses and ensuring access to healthcare services for covered individuals.

Providers are generally encouraged to bill insurance companies to facilitate the reimbursement process and reduce the financial burden on patients. However, the decision to accept insurance and the specific agreements between providers and insurers can vary.

Do Hospitals and Providers Have to Bill Insurance?

In the United States, there is no federal law mandating that hospitals or healthcare providers must bill private insurance, Medicaid, or Medicare. Providers have the flexibility to decide whether they will accept insurance and enter into agreements with specific insurance plans for the amount of those payments for specific services. While it’s customary for healthcare providers to bill insurance, including Medicare and Medicaid, some may choose not to participate in certain networks or programs. However, this decision can have implications for both the provider and the patient, as non-participating providers may charge higher fees, leaving patients responsible for a larger portion of the bill.

Typically, hospitals initiate billing by submitting claims to the primary health insurance for the medical services rendered. This is a standard practice, and hospitals typically bill the patient’s insurance as part of the normal billing process. In situations involving third party liability, the hospital may engage in a process known as Coordination of Benefits. This involves determining the order in which multiple insurance policies will contribute to covering the patient’s medical expenses. The hospital may work with the patient’s primary insurance provider, and if applicable, the insurance provider who represents the at-fault third party.

The hospital will likely conduct an analysis balancing how they receive the largest payment for their services in the shortest period of time. While the hospital works through the billing and coordination process, the patient may still be responsible for co-pays, deductibles, or any charges not covered by insurance. Clear communication between the hospital and the patient about financial responsibilities is crucial.

Billing Medicare: An Overview

Medicare, a federally funded program, provides health coverage for individuals 65 and older and certain younger individuals who suffer from specified disabilities. Providers can participate in the Medicare program or be non-participating providers, though this is uncommon.

Participating providers agree to accept Medicare-approved amounts as full payment for covered services, and they submit claims directly to Medicare. Non-participating providers may charge more than the Medicare-approved amount and may require patients to pay the difference, known as “balance billing.”

It’s important to note that while providers are not required to participate in Medicare, they are prohibited from discriminating against Medicare beneficiaries. This means that providers cannot refuse to treat a patient solely because they are covered by Medicare.

When the payment for treatment is someone else’s apparent responsibility, the provider has an obligation to not bill Medicare. Under the Medicare Secondary Payer Act, Medicare may not pay for a beneficiary’s medical expenses when payment “has been made or can reasonably be expected to be made under a workers’ compensation plan, an automobile or liability insurance policy or plan (including a self-insured plan), or under no-fault insurance.”[1] However, if responsibility for the medical expenses incurred is in dispute and other insurance will not pay promptly, the hospital, provider, physician, or other supplier may bill Medicare as the primary payer.

Billing Medicaid: An Overview

Similarly, by law, the Medicaid program is the “payer of last resort.” If another insurer or program has the responsibility to pay for medical costs incurred by a Medicaid-eligible individual, that entity is generally required to pay all or part of the cost of the claim prior to Medicaid making any payment. This is known as “third party liability” or TPL. Third parties that may be liable to pay for services include private health insurance, Medicare, employer-sponsored health insurance, settlements from a liability insurer, workers’ compensation, long-term care insurance, and other State and Federal programs (unless specifically excluded by Federal statute).

Problems can arise when a provider decides they would rather be reimbursed from a beneficiary’s tort settlement.  A provider may make this decision if it suspects it would be entitled to a higher reimbursement amount than it would receive from Medicaid.  This does not always work out in the provider’s favor if the settlement amount ends up not being enough to satisfy the provider’s claim.  Typically, providers have only 1 year from the date of service to submit bills to Medicaid.

Navigating the Billing Process

Patients should be proactive in understanding their insurance coverage and seeking clarification from providers about their billing practices. It is advisable to confirm whether a healthcare provider accepts the insurance, including Medicare or Medicaid, and inquire about any potential out-of-pocket costs. Being informed and seeking in-network providers can significantly alleviate the complexities of the billing process.


No Surprises Act

The No Surprises Billing Act, officially known as the No Surprises Act, is a U.S. federal law enacted as part of the Consolidated Appropriations Act, 2021. It addresses the issue of surprise medical billing, a situation where patients receive unexpectedly high medical bills, often due to receiving care from out-of-network providers, even in emergencies or situations beyond their control. The act aims to protect patients from exorbitant bills for out-of-network healthcare services, particularly in emergency situations and certain non-emergency situations.

Key provisions of the No Surprises Billing Act include:

  • Patients are protected from surprise billing in emergency situations, where they have little or no control over the choice of healthcare provider, by limiting their out-of-pocket costs to in-network amounts.
  • In situations where insurers and providers cannot agree on reimbursement rates for out-of-network services, the No Surprises Act establishes an Independent Dispute Resolution (IDR) process. This process involves an independent third party reviewing and resolving disputes between healthcare providers and insurers regarding reimbursement.
  • The Act requires healthcare providers and insurers to provide patients with a good faith estimate of the expected costs for scheduled services, allowing patients to better understand and plan for their healthcare expenses.
  • Patients are protected from balance billing for out-of-network emergency services and certain non-emergency services provided at in-network facilities.

The No Surprises Billing Act primarily focuses on protecting patients from unexpected and excessive medical bills, and it does not specifically address third party liability situations in the traditional sense. However, its impact on third party liability scenarios can be seen in the context of emergency care and situations where patients have limited control over the choice of healthcare providers.

In cases of emergency care, where patients may not have the opportunity to choose in-network providers, the No Surprises Act helps protect patients from balance billing and ensures that their out-of-pocket costs are limited to the amounts they would pay for in-network services. While the No Surprises Act primarily addresses disputes between insurers and providers, the IDR process could potentially be used in certain third party liability situations where disagreements arise over reimbursement for medical services.


In the complex world of healthcare billing, there is no universal requirement for hospitals and providers to bill insurance, including Medicare or Medicaid. The decision to participate in insurance programs is often at the discretion of individual providers. In normal situations, patients should advocate for themselves by being informed about their insurance coverage, seeking in-network providers when possible, and clarifying billing arrangements with healthcare providers. In third party liability situations, planning is often not possible. However, the No Surprises Billing Act should add a layer of protection, preventing unexpected billing surprises for patients whether or not available insurance is billed, or the hospital maintains a debt or asserts a lien.

[1] 42 U.S.C. §1395y(b)(2).

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