New Jersey balance billing protection law is strong on scheduled procedures

Earlier this week I raised a question whether New Jersey's new law protecting insured patients from balance billing requires patients in scheduled procedures to confirm in advance that not only the physician performing the procedure and the facility where it's performed are in network, but that all participating providers, such as anesthesiologists and radiologists, are also in-network. The question was triggered by language like this (Section 5b):

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.

Other bill language, I noted, seems to indicate that the patient is not responsible for ascertaining that all personnel are in network. 

Maura Collinsgru, health care program director at New Jersey Citizen Action and a prime mover of the NJ for Health Care Coalition, tells me that the onus is not on the patient to make all those determinations:

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.