By: Jon Jablon, Esq.
 

Our consulting team recently fielded a great question, which is worth mentioning here. The text of the law provides that health plans:
 

…”must have a database on the public website of such plan or issuer that contains (a) a list of each health care provider and health care facility with which such plan or issuer has a direct or indirect contractual relationship for furnishing items and services under such plan or coverage; and (b) provider directory information with respect to each such provider and facility.”
 

Our client’s question was whether the plan itself had to host the provider list and directory information on its own website, as the text of the law suggests, or if the plan’s website could simply include a link to the applicable network’s website to provide the directory, as is generally already the case. Congress indicated that the Plan must “have” the information on its website, but it’s not clear what that means. Essentially, the question is whether “having” the information on its website necessarily means that the plan itself must host and maintain this data, or whether the plan will be considered to “have” the information on its website by virtue of including a link on the plan’s website to an external website, such as a network’s website, that contains the information.
 

The intuitive answer is that of course the plan should be able to link to the network’s website. If websites are the bones of the internet, then links are the joints. Or ligaments, maybe. I don’t know if that analogy makes sense, but you get the idea.
 

We’re not sure, however, how much intuition and logic we can reasonably apply to solving the mysteries of the No Surprises Act. Without further guidance, it’s impossible to know whether the regulators will interpret Congress’ text to be taken literally, or if the powers that be will decide that it is fine for a plan’s website to contain external links to the appropriate network’s website. We certainly hope it will be the latter approach, but we can’t say for sure.
 

There are certain arguments for and against allowing the plan to simply link to an external website. Some examples that come to mind include the following dramatizations. Note that these are not opinions actually provided by the regulators, but theoretical responses to the arguments that TPAs and plans might make. It’s also possible that the regulators will field this question and have the same intuitive answer that we are all hoping they have. Here we go:
 

Argument for: Links are just how the internet works. No site can host everything, so the plan’s website should be able to link to the network’s website, on which the required information would be readily available. All the member has to do is click one extra link to go to the network’s website.
 

Theoretical regulatory argument against: This law is certainly not requiring plans to host everything – just a contracted provider listing and directory information. Patients need easy access to the provider directory, and third-party websites can be down, inaccurate, or otherwise difficult to navigate. Also, having to go to the plan’s website and then navigate away from it can be confusing or burdensome for some members.
 

* * *
Argument for: Requiring the plan to maintain this information separately from the network’s data would be unduly burdensome, requires significant resources to create and manage, and would likely result in inaccuracies in the plan’s data.
 

Theoretical regulatory argument against: Sometimes major process changes take significant resources to manage. The grand scheme of protecting patients outweighs the plan’s or TPA’s perceived resource limitations. With respect to the potential for errors, compare the data sets as often as you need to. The No Surprises Act provides for what happens in the event a patient is given incorrect network information, so Congress clearly envisioned that a plan or TPA might provide imperfect data in some circumstances.
 

* * *
Argument for: Networks are in a far better position to manage and stay up-to-date on their provider directories; this is how it has always been done, and we aren’t aware of any problems with this model.
 

Theoretical regulatory argument against: The law as written requires the plan to include the provider listing and directory information on its website; we will take Congress at face value. The passage of the No Surprises Act is evidence that Congress doesn’t think “how it has always been done” is working well. The plan will simply need to find a way to access the network’s data, because that is what Congress has required.
 

We’ll all be on the lookout for regulatory guidance regarding this and myriad other provisions of the no Surprises Act. In the regulators’ defense, they have been handed a truly gigantic set of requirements, with no real way to know how to effect or enforce them. With any luck, any important guidance they’ve got for us won’t be issued too late for plans to reasonably comply with it!

If you’ve got questions about specific provisions of the No Surprises Act, please don’t hesitate to contact The Phia Group’s consulting division at PGCReferral@phiagroup.com.