New Jersey's new balance billing protection law: How complete is the protection?

New Jersey's new law limiting balance billing*, which goes into effect this week, provides patients in fully funded insurance plans -- and in some self-funded plans -- with important protections. The law

• effectively bans balance billing of  insured patients who get emergency hospital care, regardless of whether those who treat them (or even the facility) are out of network.  
• Protects patients who arrange for scheduled procedures from in-network providers at in-network facilities from balance billing by undisclosed out-of-network providers (more on that below).  
• Establishes a "baseball arbitration" dispute resolution system for insurers billed by out-of-network providers. That is, the arbitrator rules in favor of one of the two parties' position rather than splitting the difference. That should put downward pressure on providers' OON billing rates, and so on premiums.
• Includes -- uniquely among state balance billing laws -- an opt-in for self-funded employer plans, which are governed by ERISA, not by state law. The majority of people who are insured through their employer are in self-funded plans.
• Enables balance-billed patients insured via a self-funded plan that does not opt in to initiate arbitration with a balance billing OON provider. 

That's a pretty strong set of protections, with creative workarounds the gigantic impediment to state protection on this front: the fact that self-funded plans are not subject to state insurance regulation wth regard to balance billing (and many other things).  The bill was fruit of a ten-year struggle, and I'm grateful (e.g. to its primary and co-sponsors, including Sen. Joseph Vitale) for its passage.

I'm somewhat troubled, however, by its mechanism for preventing balancing billing by out-of-network providers -- e..g, anesthesiologists, radiologists, pathologists, and assistant surgeons-- participating in a scheduled procedure at an in-network facility when the primary physician is also in network. The onus appears to be on the patient to do a lot of checking. Or maybe not. The text seems to be ambiguous on this front.

For a scheduled procedure, Section 5b requires the following disclosures from lead provider to  patient:

b. A health care professional who is a physician shall provide the covered person, to the extent the information is available, with the name, practice name, mailing address, and telephone number of any health care provider scheduled to perform anesthesiology, laboratory, pathology, radiology, or assistant surgeon services in connection with care to be provided in the physician’s office for the covered person or coordinated or referred by the physician for the covered person at the time of referral to, or coordination of, services with that provider. The physician shall provide instructions as to how to determine the health benefits plans in which the health care provider participates and recommend that the covered person should contact the covered person’s carrier for further consultation on costs associated with these services.

c. A physician shall, for a covered person’s scheduled facility admission or scheduled outpatient facility services, provide the covered person and the facility with the name, practice name, mailing address, and telephone number of any other physician whose services will be arranged by the physician and are scheduled at the time of the pre-admission, testing, registration, or admission at the time the non-emergency services are scheduled, and information as to how to determine the health benefits plans in which the physician participates, and recommend that the covered person should contact the covered person’s carrier for further consultation on costs associated with these services.

What if the patient, having arranged a procedure with an in-network physician at an in-network facility, does not ascertain that the anesthesiologist, radiologist etc. are in-network?   Will that patient be exposed to balance billing? Perhaps not. Here are the facility's responsibilities:

C.26:2SS-4 Disclosures by health care facility.
4. a. Prior to scheduling an appointment with a covered person for a non-emergency or
elective procedure and in terms the covered person typically understands, a health care
facility shall:
(1) disclose to the covered person whether the health care facility is in-network or out-ofnetwork
with respect to the covered person’s health benefits plan;
(2) advise the covered person to check with the physician arranging the facility services
to determine whether or not that physician is in-network or out-of-network with respect to the covered person’s health benefits plan and provide information about how to determine the health plans participated in by any physician who is reasonably anticipated to provide services to the covered person;
(3) advise the covered person that at a health care facility that is in-network with respect
to the person’s health benefits plan:
(a) the covered person will have a financial responsibility applicable to an in-network
procedure and not in excess of the covered person’s copayment, deductible, or coinsurance as provided in the covered person’s health benefits plan;
(b) unless the covered person, at the time of the disclosure required pursuant to this
subsection, has knowingly, voluntarily, and specifically selected an out-of-network provider to provide services, the covered person will not incur any out-of-pocket costs in excess of the charges applicable to an in-network procedure...

If you don't call the anesthesiologist, etc., and one or more are in fact out-of-network, have you "knowingly, voluntarily and specifically selected an out-of-network provider"?   Apparently not. Per the definitions section:

“Knowingly, voluntarily, and specifically selected an out-of-network provider” means that a covered person chose the services of a specific provider, with full knowledge that the provider is out-of-network with respect to the covered person’s health benefits plan, under circumstances that indicate that covered person had the opportunity to be serviced by an in network provider, but instead selected the out-of-network provider. Disclosure by a provider of network status shall not render a covered person’s decision to proceed with treatment from that provider a choice made “knowingly” pursuant to this definition. 

Come again? What does "knowingly, voluntarily, etc." mean, then? I will be seeking enlightenment and will follow up.

If the patient does in fact have a responsibility to ascertain that everyone participating in a procedure is in-network (a bit if, per above), that raises more questions:

1. Can surgeons or others performing scheduled procedures generally ascertain in advance who will be assisting them? My limited experience indicates not.
2. Most provider networks in New Jersey health plans are tiered (in the individual market, anyway, and in the self-funded Horizon-administered plan that insures my wife and me).  What if your surgeon, Dr. Billie Algood, is Tier 1, but the anesthesiologist she names to you, Dr. Max Billing, is Tier 2?  Do you request a Tier 1 substitute? Is anyone (surgeon or hospital) equipped to provide/guarantee this?
3. What if the procedure is not emergency (which is protected in any case) but needs to be done pronto, and an all-in-network team can't be assembled or guaranteed?

I will see if I can ascertain just how much onus is on the patient to ascertain, and if necessary arrange and negotiate, all-in-network care.

--
* The law's short title: Out-of-network Consumer Protection, Transparency, Cost Containment and Accountability Act.