NJ Medical Practices Must Update Patient Disclosures To Comply With Out-of-Network Billing Law

February 4, 2019Alerts

As of August 30, 2018, medical practices that bill health benefits plans issued or delivered in New Jersey (NJ Health Plans) for services rendered in New Jersey were required to begin making certain patient disclosures under the Out-of-Network Consumer Protection, Transparency, Cost Containment and Accountability Law.  (See our August 2018 Alert outlining the law's provisions.)  Among other things, the law also established an arbitration process for disputes between providers and NJ Health Plans over certain types of out-of-network claims. 

The New Jersey Department of Banking and Insurance (DOBI), which is charged with enforcing the law, has issued an 18-page Bulletin on implementation of the law by health care professionals (including physicians), certain health care facilities and NJ Health Plans.

The Bulletin is an important reminder that medical practices that bill NJ Health Plans must take action to update existing patient disclosure forms, develop new patient disclosure forms and revise their policies and procedures to ensure compliance with the law.

Patient Disclosure Requirements

Our prior Alert sets forth the patient disclosure requirements in detail. The law does not require disclosures to be made to patients who are not enrolled in a NJ Health Plan. Notably, that includes patients in any of the following insurance programs or plans (none of which are NJ Health Plans): Medicare, Medicare Advantage, New Jersey Medical Assistance (Medicaid), TRICARE supplement coverage, workers’ compensation coverage, automobile medical payment insurance, personal injury protection insurance and dental insurance plans, among others.

Certain patient disclosure requirements apply to all licensed health care professionals billing NJ Health Plans, irrespective of whether such professionals are in-network or out-of-network with such Plans. Other disclosure requirements apply only to health care professionals who are out-of-network with a patient’s NJ Health Plan. Providers will need to update their existing patient disclosure forms, and, in some cases, create new forms, to properly document these disclosures. Provider websites also will likely need updating.

In addition, policies and procedures may require modifications to ensure that the practice’s patient disclosures remain updated and that proper disclosures are given to a patient who requests information regarding out-of-network services. Specifically, if a licensed health care professional in New Jersey is out-of-network with a NJ Health Plan, the professional must provide the patient, upon request, with the estimated cost and CPT codes related to their expected services. Front desk staff must be prepared to respond to these requests and provide information to the patient in accordance with the law.

In our last Alert, we reported that the New Jersey Board of Medical Examiners (BME) was expected to publish forms containing the disclosures required by the law for use by physicians and other health care professionals licensed by the BME. To date, the BME has not issued such forms, and it is unclear if or when such forms will be issued. Health care professionals and their employers (such as medical practices and health care facilities) should consult experienced legal counsel to make sure these required disclosure forms comply with the law. Because the law has been effect since August 30, 2018, professionals should be using these forms by now. DOBI may impose penalties on health care professionals of up to $100 per day for each violation of the law, with a cap of $2,500 for each occurrence.

The law also imposes requirements on health care professionals with respect to the billing of “inadvertent” out-of-network services and services provided on an emergency or urgent basis at an in-network or out-of-network health care facility (including general acute care hospitals, satellite emergency departments, hospital-based off-site ambulatory care facilities and ambulatory surgery facilities). Under the law, “inadvertent” out-of-network services are services that are covered under a NJ Health Plan and provided in an in-network health care facility by an out-of-network provider, in the event that the services cannot be provided in-network at the facility. Examples include on-call, anesthesiology or radiology services provided by out-of-network physicians at an in-network facility. Health care professionals should seek legal counsel regarding these requirements to the extent that they may be applicable to their practices and facilities.

Arbitration Process for Certain Out-of-Network Claims

The law sets forth a binding, “baseball-style” arbitration process for claims submitted to NJ Health Plans for (1) out-of-network emergency or urgent care services, or (2) inadvertent out-of-network services. In other words, the arbitrator will select either the carrier’s final offer or the provider’s final offer in its decision.

The recent DOBI Bulletin clarifies each step of the arbitration process for health care professionals, health care facilities and carriers. The process is quick-moving, and will require medical practices to track each eligible claim to ensure that they do not waive their right to arbitrate. This will lead to additional costs, and a delay in cash flow. Medical practices should also consider how the need to track the claims would impact their policies and procedures for billing. To the extent that medical practices engage a third-party billing service, the practice must work with that service to ensure that the practice meets the requirements of the arbitration process.

The general steps of the arbitration process are:

  1. If the carrier will not pay the provider’s claim in full, it must make its initial offer to the provider, and pay such amount, within 20 days of receipt of the claim.
  1. If the provider wishes to reject the carrier’s initial offer as payment in full for the claim, then it must notify the carrier of the same within 30 days of receipt of the offer/payment. If the provider fails to notify the carrier within this time period, it will waive its right to arbitrate the claim.
  1. It is noted that the provider’s 30-day response period is also the permitted negotiation period under the law. In the event that the parties cannot negotiate a settlement of the claim within that period, the carrier must send the provider notice of its final offer on the claim within seven (7) days thereafter.
  1. Following receipt of the carrier’s final offer, the provider (or the carrier) will have thirty (30) days to file a request for arbitration, after which their respective rights to arbitrate the claim will be waived.

The cost of the arbitration will generally be split between the parties, unless the carrier is found not to have acted in good faith. However, the parties will pay their own legal fees for representation.

Providers should be on the alert if a carrier tells the provider that it must respond to the carrier’s initial offer and payment within a shorter timeframe than 30 days. That is not required by the law.

Should you have any questions regarding compliance with the law, including the arbitration process or required patient disclosures, please contact an experienced attorney in healthcare regulatory matters. Any member of Fox Rothschild LLP’s Health Law Group would be happy to assist you. Please visit us on the web at www.foxrothschild.com.

Nothing in this Alert is intended to provide legal advice, and all descriptions of disclosures required by the law and the arbitration process are provided solely for the purpose of understanding the law. The entire text of the law can be accessed at this link: ftp://www.njleg.state.nj.us/20182019/A2500/2039_I1.HTM. The DOBI Bulletin may be accessed at this link: https://www.state.nj.us/dobi/bulletins/blt18_14.pdf.