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Patient Protections


The Patient Health Services Act added a specific section called Patient Protections. Patient protections require group health plans do the following:


  • Allow participants to designate any available participating primary care provider, including pediatrician.
  • Prohibits a group health plan from requiring preauthorization or referral by the plan or any person, including a primary care physician, for obstetrical or gynecological care.
  • Prohibits prior authorization for emergency services, if covered.


The requirements relating to patient protections apply to non-grandfathered group health plans and issuers of group and individual health insurance coverage. The requirements do not apply to excepted benefit plans, retiree plans or plans which have retained grandfathered status. Allow participants to designate any available participating primary care provider and Pediatrician.


Group health plans and insurers that require or provide for designation of a participating primary care provider or pediatrician must permit the designation of any available physician who specialized in such primary care or pediatric care.


Patient Access to Obstetrical and Gynecological Care

A group health plan may not require preauthorization or referral by the plan or any person, including a primary care physician.


  • In the case of a female participant or beneficiary who seeks obstetrical or gynecological care provided by a participating provider who specializes in obstetrics or gynecology. (For this purpose, a health care professional who specializes in obstetrics or gynecology is any individual, including a person who is not a physician, who is authorized under applicable state law to provide obstetrical and gynecological care.)
  • A plan may require that all other plan policies and procedures be followed. Including those relating to referrals, preauthorization and providing care under a treatment plan. That is to say that the OB/GYN provider must still follow plan procedures regarding the services rendered. Nothing prohibits a plan from requiring the OB/GYN provider to communicate with the participants Primary Care Physician or health plan.

Coverage of Emergency Services

If a group health plan provides benefits for emergency services, the plan:


  • Cannot require preauthorization, including for emergency services provided out-of-network;
  • Must provide coverage regardless of whether the provider is in- or out-of-network;
  • May not impose any administrative requirement or coverage limitation that is more restrictive than would be imposed on in-network emergency services; and must comply with certain cost-sharing requirements.

The special cost-sharing requirements imposed in connection with emergency services are as follows:


  • Any co-payment amount or coinsurance rate cannot be higher for out-of-network services than for co-payment amounts and coinsurance rates imposed on in network services
  • Any benefits provided for out-of-network emergency services must be provided in an amount equal to the greatest of the following three amounts

    •  The median of the amount negotiated with in-network providers for emergency services without regard to copayments and coinsurance (if no per-service amount is negotiated, such as
        under a capitation or other similar payment, this amount is disregarded).

    •  The amount the plan generally pays for out-of-network services, such as usual, customary and reasonable amount, but without regard to in-network copayments or coinsurance and without
        reduction for the plan's usual cost-sharing generally applicable to out-of-network services.

    •  The amount that would be paid under Medicare Parts A and B, without regard to copayments and coinsurance.


  • Out-of network providers are permitted to "balance bill" participants for the difference between a provider's charges and the total amount collected by the provider, including payments from the plan and copayments or coinsurance amounts from the participant. However, a reasonable amount must be paid before a participant becomes responsible for a balance billing amount. In establishing a reasonable amount, the greatest of the three amounts discussed above the in-network rate, the out-of-network rate, and the Medicare rate—must be considered.
  • If a plan covers non-emergency services in the emergency room, nothing prohibits a plan from continuing to impose higher copays, deductibles or coinsurance amounts.
  • A plan does not have to reimburse out-of-network services at the in-network level for treatment of non-emergency medical conditions.

Disclosure Requirements

A group health plan that requires designation of a primary care provider needs to also provide a notice to each plan member. The notice should describe the plan's requirements regarding designation of a primary care provider and of the participant's or beneficiary's right to:


  • Designate any participating primary care provider who is available to accept the participant or beneficiary;
  • Designate, for any participant or beneficiary that is a child, a primary care provider that is a pediatrician; and
  • Obstetrical or gynecological care without preauthorization or referral.

This notice is required whenever a summary plan description or other similar description of plan benefits is provided to a participant or beneficiary.



Although there are no specific penalties, participants, beneficiaries, and the Department of Labor may use ERISA's civil enforcement provisions to file lawsuits to enforce their requirements.


The affected party could possibly seek damages for unpaid benefits, interest, and attorney's fees. Remember, non-federal governmental plans and church plans are not subject to ERISA, these ERISA-based enforcement mechanisms do not apply to them.


This content is being provided as an informational tool. It is believed to be accurate at the time of posting and is subject to change. It is recommended that plans consult with their own experts or counsel to review all applicable federal and state legal requirements that may apply to their group health plan. By providing this information, Meritain Health is not exercising discretionary authority or assuming a plan fiduciary role, nor is Meritain Health providing legal advice.