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NJ DOBI Issues Out of Network Guidance

On Tuesday, November 20, 2018, the Department of Banking and Insurance (“DOBI”) published Bulletin 18-14 (“Bulletin”) to help carriers, health care providers and other interested parties meet their obligations under the Out of Network Consumer Protection, Transparency, Cost Containment and Accountability Act (the “Act”), which was enacted on June 1, 2018, and became effective on August 20, 2018.

The 29-page Bulletin serves as agency guidance until DOBI proposes regulations for the implementation of the Act. The bulk of the document contains procedures for claims processing and arbitration for out of network (“OON”) services provided on an inadvertent or urgent basis covered under the Act.  There is a short mention of OON billing and cost-sharing waivers, which reiterates the requirements under the Act and the Federal law on co-pay waivers.  The Bulletin also provides some guidance on the carrier disclosure requirements, including a customizable disclosure form as an attachment.  Links to the Bulletin and Attachments can be found below.

Much of the Bulletin focuses on the claims processing/negotiation process prior to arbitration and the arbitration process itself. The Bulletin provides language that must be included in the EOB informing the OON health care provider of its right to reject the payment and negotiate with the carrier, including specific timeframes for notice of rejection of payment to be eligible for arbitration.

The Bulletin further provides the conditions under which the OON health care provider may request to enter into binding arbitration: (1) the difference between the carrier and OON health care provider’s final offer is $1,000 or higher; (2) the applicable preauthorization or notice requirements of the health benefits plan were complied with; (3) the matter does not involve a dispute as to whether a treatment or service is medically necessary, experimental or investigational, or cosmetic; or (4) the carrier should have authorized the service to be performed by an OON health care provider through an in-plan exception because the carrier’s network lacks a provider who is accessible and possesses the requisite skill and expertise to perform the needed services.

Until August 30, 2019, DOBI will utilize its current vendor MAXIMUS to administer the OON Arbitration System. Thereafter, a vendor will be engaged through DOBI’s procurement process.  Currently, MAXIMUS will be accepting OON Arbitration Applications on https://njpicpa.maximus.com/njportal/. Fee information is available on the website.

The deadlines for rejection of initial and final notice of offers of payment and for filing the arbitration application are paramount. For example, MAXIMUS will reject any application that it receives in excess of the 30 days after the provider’s receipt of the carrier’s notification of its final offer of the allowed amount/allowed charge. The Bulletin spells out the evidentiary format and the deadlines for MAXIMUS to issue a decision and for the carrier to make payment, if applicable.

The Bulletin emphasizes its expectation that the OON health care provider will only bill the covered person for the cost-sharing liability for the services once, regardless of whether an increased payment was made by the carrier through negotiation or arbitration.

The links to the Bulletin 18-14 and Attachments are as follows:

Bulletin 18-14 :https://www.state.nj.us/dobi/bulletins/blt18_14.pdf

Arbitration Process Grid: https://www.state.nj.us/dobi/division_insurance/oonarbitration/processgrid.pdf

Arbitration Application: https://www.state.nj.us/dobi/division_insurance/oonarbitration/requestform.pdf

Disclosures to Covered Persons Regarding Out of Network Treatment. https://www.state.nj.us/dobi/division_insurance/oonarbitration/disclosures.pdf

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About this Author

Anjali Baxi, Giordano Halleran Law Firm, Healthcare Attorney, New Jersey health Law,Cannabis Law,Government Affairs,Business Transactions, Health Care Law Regulation, Medicare and NJ Medicaid Enrollment

Anjali has been practicing law for 15 years, mainly focused on health care transactional and regulatory matters. She prepares and reviews LOIs, purchase agreements and other transaction documents for health care providers needed for the business transfer and necessary for the transfer of NJDOH and NJDHS licenses and provider numbers. She also reviews agreements required for the day to day operations of health care facilities.

She has counseled skilled nursing, assisted living, adult medical day care, outpatient facility clients and hospitals regarding NJDOH regulatory requirements,...