Understanding the Out-of-Network Mandate
On December 27, 2020, the No Surprises Act (NSA) was signed into law as part of the Consolidated Appropriations Act of 2021 and takes effect on January 1, 2022. The NSA protections are like those already provided in New York. However, the federal provisions expand the New York protections in certain circumstances.
The NSA provides that the federal independent dispute resolution (IDR) process will apply and may be used to determine the out-of-network rate for emergency services in the emergency department of a hospital or independent freestanding emergency department and non-emergency items and services furnished by non-participating providers during a visit to a participating health care facility when an All-Payer Model Agreement under Social Security Act § 1115A or “specified state law” does not apply.
New York has an IDR process that applies to out-of-network emergency services, including inpatient services that follow an emergency room visit, in hospital facilities, and surprise bills in participating hospitals or ambulatory surgical centers and for services referred by a participating physician. Since New York has a specified state law, the New York IDR process will continue to apply to out-of-network emergency services and surprise bills.
Surprise Bills: What They Are and What to Do with Them
What is “balance billing” (sometimes called “surprise billing”)?
When you see a doctor or other health care provider, you may owe certain out-of-pocket costs, such as a copayment, coinsurance, and/or a deductible. You may have other costs or have to pay the entire bill if you see a provider or visit a health care facility that isn’t in your health plan’s network.
“Out-of-network” describes providers and facilities that haven’t signed a contract with your health plan. Out-of-network providers may be permitted to bill you for the difference between what your plan agreed to pay and the full amount charged for a service. This is called “balance billing.” This amount is likely more than in-network costs for the same service and might not count toward your annual out-of-pocket limit.
“Surprise billing” is an unexpected balance bill. This can happen when you can’t control who is involved in your care—like when you have an emergency or when you schedule a visit at an in-network facility but are unexpectedly treated by an out-of-network provider.
You are protected from balance billing for:
Emergency services
If you have an emergency medical condition and get emergency services from an out-of-network provider or hospital, the most the provider or facility may bill you is your plan’s in-network cost-sharing amount (such as copayments and coinsurance). You can’t be balance billed for these emergency services. This includes services you may get after you’re in stable condition, unless you give written consent and give up your protections not to be balanced billed for these post-stabilization services. If New York law applies to your health plan (for example, coverage that is not self-funded by your employer and was bought in New York) you can’t give up your protections and you can’t be balance billed for post-stabilization services. Your health plan ID card will tell you if New York law applies.
Certain services at an in-network hospital or ambulatory surgical center
When you get services from an in-network hospital or ambulatory surgical center, certain providers there may be out-of-network. In these cases, the most those providers may bill you is your plan’s in-network cost-sharing amount. This applies to emergency medicine, anesthesia, pathology, radiology, laboratory, neonatology, assistant surgeon, hospitalist, or intensivist services. These providers can’t balance bill you and may not ask you to give up your protections not to be balance billed.
If you get other services at these in-network facilities, out-of-network providers can’t balance bill you, unless you give written consent and give up your protections. If New York law applies to your health plan, you can’t give up your protections for these other services if they are a surprise bill. You may need to sign a form to make sure you aren’t balance billed. Surprise bills are when you’re at an in-network hospital or ambulatory surgical facility and a participating doctor was not available, a non-participating doctor provided services without your knowledge, or unforeseen medical services were provided.
Services referred by your in-network doctor
If New York law applies to your health plan, surprise bills include when your in-network doctor refers you to an out-of-network provider without your consent (including lab and pathology services). These providers can’t balance bill you and may not ask you to give up your protections not to be balance billed. You may need to sign a form to make sure you aren’t balance billed. Your health plan ID card will tell you if New York law applies.
What to do if you receive a surprise bill
The new law gives patients who receive surprise bills the right to appeal through an independent dispute resolution entity (IDRE), which will make a determination within 30 days of receiving the request.
If you are insured through a commercial or state-funded CDPHP® plan, by completing an Assignment of Benefits form. Send one copy of the form to the doctor who provided the services and one copy to CDPHP by emailing it to us using the secure member site, or by mailing it to us at:
CDPHP
500 Patroon Creek Blvd.
Albany NY 12206
CDPHP will dispute the bill on your behalf, and you will be responsible for only your in-network cost share for covered services.
If you have health coverage through an employer that self-insures or if you are uninsured, you may dispute a bill through the New York State Independent Dispute Resolution Process.
You’re never required to give up your protections from balance billing. You also aren’t required to get care out-of-network. You can choose a provider or facility in your plan’s network.
When balance billing isn’t allowed, you also have the following protections:
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You are only responsible for paying your share of the cost (like the copayments, coinsurance, and deductibles that you would pay if the provider or facility was in-network). Your health plan will pay out-of-network providers and facilities directly.
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Your health plan generally must:
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Cover emergency services without requiring you to get approval for services in advance (prior authorization).
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Cover emergency services by out-of-network providers.
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Base what you owe the provider or facility (cost-sharing) on what it would pay an in‑network provider or facility and show that amount in your explanation of benefits.
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Count any amount you pay for emergency services or out-of-network services toward your deductible and out-of-pocket limit.
If you think you’ve been wrongly billed and your coverage is subject to New York law (“fully insured coverage”), contact the New York State Department of Financial Services at (800) 342-3736 or surprisemedicalbills@dfs.ny.gov. Visit www.dfs.ny.gov for information about your rights under state law.
Contact CMS at 1-800-985-3059 for self-funded coverage or coverage bought outside New York. Visit www.cms.gov/nosurprises/consumers for information about your rights under federal law.