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What Providers Need to Know About NJ DOBI Bulletin NO. 18-14 on the Out-of-Network Act

The New Jersey Department of Banking and Insurance (DOBI) recently released a guidance bulletin, Bulletin NO. 18-14  (the “Bulletin”), in an effort to provide additional guidance to carriers, health care providers, and other interested parties in order to help those entities meet their obligations under the Out-Of-Network Consumer Protection, Transparency, Cost Containment, and Accountability Act, P.L. 2018, c. 32 (codified at N.J.S.A. 26:2SS-1 to -20), (the “Act”). While the Bulletin primarily addresses questions relevant to the binding arbitration processes and insurance carrier-specific disclosures required under the Act, it also touches on the patient (i.e. “covered person”) cost-sharing limitations under the Act, as well as a limitation on how the emergency/urgent cost limitation will apply in scenarios where the covered person is stabilized and then transferred to an in-network facility. As the latter will affect New Jersey healthcare providers on a day-to-day basis, this article will attempt to summarize those clarifications to bring providers up to speed.

Clarification on Patient Cost-Sharing Liability Limits:

The Bulletin specifically notes that the transparency/disclosure provisions of the Act apply to all carriers operating in New Jersey with regards to health benefits plans issued in New Jersey. Additionally, the claims processing and arbitration provisions of the Act apply to all policies issued by carriers without regard to whether the policy contains coverage for voluntary out-of-network benefits. These provisions also apply when the out-of-network services were rendered on an inadvertent and/or emergency or urgent basis (“involuntary”) (collectively, “inadvertent and/or involuntary out-of-network services”) in New Jersey and by a New Jersey licensed or certified health care provider to a covered person under a health benefits plan issued in New Jersey. They may also apply to self-funded health benefits plans that elect to be subject to the claims processing and arbitration provisions of the Act and that cover New Jersey residents.

Involuntary Out-Of-Network Facility Transport Exception:

Another important clarification contained in the Bulletin focuses around how the law’s involuntary out-of-network services provisions apply to a patient’s transport between facilities. The Bulletin notes that while the provision of medically necessary services by an out-of-network urgent care or emergency facility clearly constitutes involuntary out-of-network services to which the arbitration provisions of the Act apply, any admissions into the same out-of-network facility resulting from the involuntary out-of-network services will be subject to arbitration under the Act up to the point when the covered person can be safely transported to an in-network facility, and including the means of transfer between facilities. Since all plans require providers and covered persons to notify their health insurance carrier within a certain number of days upon a facility admission, the Bulletin notes that the insurance carrier will have knowledge of such an involuntary out-of-network admission and be able to engage in utilization management. If during such utilization management, the carrier authorizes a continued stay in the out-of-network facility past the date upon which the covered person can be safely transferred to an in-network facility, the services rendered after that determination will be considered an in-plan exception, and the services will not be subject to arbitration under the Act. If the carrier does not authorize the continued stay in the out-of-network facility and requires transfer, but the covered person elects to stay at the out-of-network facility, the services rendered after the date of safe transfer would be considered voluntary out-of-network services and are not subject to arbitration under the Act.

No Waiver of Patient Rights Permitted

The Bulletin specifically notes that covered persons cannot waive their rights under the Act. As such, waivers provided to covered persons in situations where inadvertent and/or involuntary out-of-network services may be provided does not remove those services from the purview of the Act, and thus, providers must not balance bill covered persons for inadvertent and/or involuntary out-of-network services even if those covered persons sign waivers for, or consent to, those services.

If you or your practice have yet to take steps to ensure compliance with the various requirements under the Act, you should do so as it has in effect since August of 2018. Frier Levitt helps health care providers understand these requirements and assists with the creation and implementation of policies and practices to reduce the risk of losses or penalties due to non-compliance. Contact Frier Levitt today to speak to an attorney.