NYS Department of Financial Services (DFS) issues guidance on surprise bills for health care services

DFS has recently posted guidance on its Health Insurance Resource Center webpage providing additional information for consumers and providers about the new surprise bill law.  See http://www.dfs.ny.gov/consumer/hprotection.htm. The law, which goes into effect on March 31, 2015, seeks to protect consumers from surprise bills for emergency services as well as surprise bills for services performed by out of network providers.  See related alert linked below (New York's surprise medical bill). DFS has also re-issued the regulation addressing the independent dispute resolution process as an emergency regulation and will finalize the regulation in the near future.  See related alert linked below (New York's Surprise Medical Bill Law).

The DFS guidance summarizes what providers need to know about the law and includes a DFS developed assignment of benefits form that is to be provided to and completed by patients who believe that they have received a surprise bill.

The guidance reinforces the regulations and states that a bill will be a surprise bill if a patient receives a bill from a non-participating physician at a participating hospital or surgery center and a participating provider was not available or a non-participating physician provided services without the patient’s knowledge or unforeseen medical circumstances arose at the time health care services were provided. In addition, a bill will be considered a surprise bill if a participating provider refers a patient to a non-participating provider and the patient has not signed a consent form acknowledging that the services would be out of network and would result in costs not being covered by the patient’s health plan. DFS further states that a referral occurs 1) when during a visit with a participating physician, a non-participating physician treats the patient, 2) a participating physician takes a specimen during the visit and sends it to a non-participating laboratory or 3) for any other health care service when referrals are required by the patient’s health plan.

If a physician bills a patient for what could be a surprise bill, the physician is required to provide the patient with a copy of the DFS Assignment of Benefit form. In cases where a patient completes the form, a physician can only collect from the patient the patient’s in-network cost sharing responsibility. The health plan is required to pay the physician the billed amount or attempt to negotiate reimbursement with the physician.

The Health Care Resources Center’s Health Care Provider Rights and Responsibilities[1] has also been updated to summarize the disclosure obligations of hospitals, physicians and other health care professionals. For example, when scheduling appointments, a health care professional is required to give, in writing or through website, information regarding which health plans the professional participates in as well as the professional’s hospital affiliations. The health care professional must also inform the patient that the amount or estimated amount a patient will be billed for services is available upon request if the professional does not participate in the patient’s health plan. Additional disclosure requirements apply when a physician arranges for services in his office, refers a patient for services, or arranges for scheduled nonemergency inpatient or outpatient services. Specifically, the physician is required to provide a patient or prospective patient with the following at the time of referral to or coordination with such provider:

• The provider’s name, if the physician schedules a specific provider in a practice.
• The provider’s practice.
• The provider’s address.
• The provider’s telephone number.

When arranging for scheduled non-emergency inpatient or outpatient services in a hospital, a physician must provide the following information regarding the other physicians whose services are scheduled at the time of the pre-admission testing, registration or admission:

• The physician’s name, if the physician schedules a specific physician in the practice.
• The physician’s practice.
• The physician’s address.
• The physician’s telephone number.
• How to determine the health plans in which the physician participates.

However, DFS clarified that such disclosure requirements are not required when a patient has an unscheduled hospital admission (i.e., through the emergency department) and is stabilized but requires additional inpatient treatment. Despite the lack of disclosure requirements, DFS does remind providers that if an emergency room physician requests a consultation from a specialist to evaluate a patient in the emergency room and the specialist is out-of-network, a bill from the specialist will be considered a bill for emergency services and be subject to the Independent Dispute Resolution Process.

DFS also provides further clarification on the disclosure responsibilities of hospitals which include the following:

A hospital is required to post on its website:

• Charges. A list of its standard charges for items and services provided by the hospital (or how to obtain this information if the list of charges is not posted).
• The health plans in which it is a participating provider.
• A statement providing the following information about charges of physicians in the hospital:
  • That physician services provided in the hospital are not included in the hospital’s charges.
  • That physicians who provide services in the hospital may or may not participate with the same health plans as the hospital.
  • That the prospective patient should check with the physician arranging for the hospital services to determine the health plans in which the physician participates.
• The name, address and telephone number of the physician groups that the hospital has contracted with to provide services such as anesthesiology, pathology or radiology, and instructions on how to contact these groups to determine the health plan participation of the physicians in the groups.
• The name, address and telephone number of physicians employed by the hospital and whose services may be provided at the hospital, and the health plans in which they participate.

In addition, a hospital is required, in registration or admission materials provided prior to non-emergency hospital services, to:

• Advise a patient or prospective patient to contact the physician arranging the hospital services to determine:
  • The name, practice name, address and telephone number of any other physician whose services will be arranged by the physician.
  • Whether the services of physicians who are employed or contracted by the hospital to provide services such as anesthesiology, pathology and radiology are reasonably anticipated to be provided to the patient.

Hospitals must also provide patients or prospective patients with information as to how to timely determine the health plans participated in by physicians who are reasonably anticipated to provide services to the patient at the hospital and who are employees of the hospital or contracted by the hospital to provide services including anesthesiology, pathology and radiology.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.