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New York Seeks to Add Greater Protections Against Surprise Bills

Last week, the New York State Department of Financial Services released a proposed amendment to the regulations promulgated under the state’s Emergency Medical Services and Surprise Bills law (the SBL), which adds additional notice requirements for insurers and out-of-network (OON) providers.

Originally passed in 2014 and effective March 31, 2015, the SBL holds insured consumers harmless from paying “surprise bills” (other than standard in-network co-payment, deductible, and coinsurance fees) for OON emergency services, as well as bills:

  • For services rendered at in-network hospitals and ambulatory surgery centers if no in-network physician was available to provide the care or an OON provider rendered the service without the insured’s knowledge; and

  • For services rendered by an OON provider referred by an in-network provider without the express written consent of the insured.

When an insured individual receives the surprise bill, he or she must sign a surprise bill assignment of benefits (AOB) form permitting his or her provider to seek payment from the insured’s health plan, together with the invoice the insured believes constitutes a surprise bill.  Once the health plan pays the provider an amount that it determines is reasonable, the provider can dispute that amount through the independent dispute resolution (IDR) process. The IDR entity will make a determination within 30 days of receipt of the dispute.

Currently, if a health plan receives a claim that it believes may be a surprise bill and it is not accompanied by the AOB, the plan must advise the insured that the claim could be a surprise bill and that he or she should contact the plan or visit the plan’s website for additional information.  The proposed regulation adds that the plan must also provide a description of what constitutes a surprise bill, a description of the IDR process, the AOB form, the plan’s e-mail address for submitting the AOB form, and information on how the insured can submit the surprise bill to an IDR entity (the Notice Information).

The amendment also addresses what happens if a health plan determines that OON emergency services provided to an insured were not in fact emergency services. In such instances, the health plan would have to include in its adverse determination:

  • A notice that the services may be a surprise bill and could be eligible for the IDR process;

  • The Notice Information; and

  • A statement that the insured should not delay filing an internal appeal or external appeal even if the insured believes the services denied by the plan involve a surprise bill.

Similarly, if a plan receives an AOB for a surprise bill and does not believe it constitutes a surprise bill, the amendment would require the plan to provide the insured with notice of that determination, which must include the procedures for filing a grievance and appeal.

Finally, the amendment proposes that OON providers who bill consumers for emergency services or send surprise bills provide those consumers with the AOB form and notify them of the IDR process.

The primary aim of the SBL has been to protect consumers from unforeseen or unanticipated costs, and while data is limited, early reports believe it to be a success. As other states, along with the federal government, pass legislation or take steps to do so, New York’s surprise bill law – the first of its kind – continues to pave the way, and New York's legislators seek new opportunities to build upon the bill's reputation as one of the strongest consumer protection laws against surprise bills in the country.

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About this Author

Nili Yolin Corporate and Healthcare Law Attorney Mintz Levin
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Nili helps health care clients understand and navigate the regulatory environment in order to maximize their business opportunities. She draws on her knowledge of federal and state laws to help clients structure complex transactions, design and implement compliance programs, and enter into professional services, consulting services and other arrangements that reduce their risk of liability under intricate regulatory frameworks such as corporate practice of medicine, anti-kickback, and self-referral (Stark) laws.

Nili counsels hospitals, large and small group practices, community-...

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