You did it the right way. You searched the plan's directory, found a therapist listed as in network and accepting new patients, called, booked, and went. Then the claim came back out of network, or the therapist said the listing was two years stale. The law has a name for that listing, and a remedy for having relied on it.
The short answer: two laws apply, and the federal one gives you the direct right. Under the federal No Surprises Act, since plan years beginning in 2022, if you were furnished a service the plan would otherwise cover by a non-participating provider after receiving information "through a database, provider directory, or response protocol" that the provider "was a participating provider," or after asking and being "informed through such protocol that the provider was such a participating provider," the plan "shall not impose on such participant, beneficiary, or enrollee a cost-sharing amount for such item or service so furnished that is greater than the cost-sharing amount that would apply" in network, and "shall apply the deductible or out-of-pocket maximum, if any, that would apply if such services were furnished by a participating provider or a participating facility."¹ A provider who bills you more than that in-network amount, and is paid, "shall reimburse the enrollee for the full amount paid by the enrollee in excess of the in-network cost-sharing amount for the treatment or services involved, plus interest."² California's own statute makes the plan keep the online directory updated "at least weekly," investigate a reported inaccuracy and fix or verify it "no later than 30 business days" after the report, and flag "providers who no longer accept new patients."³ And where the Department of Managed Health Care "finds that an enrollee reasonably relied upon materially inaccurate, incomplete, or misleading information" in a directory, it "may require the health plan to provide coverage for all covered health care services provided to the enrollee and to reimburse the enrollee for any amount beyond what the enrollee would have paid, had the services been delivered by an in-network provider under the enrollee's plan contract."³
The federal right, and what triggers it
The condition is reliance on the plan's own information. Either you "received through a database, provider directory, or response protocol… information with respect to such item and service to be furnished and such information provided that the provider was a participating provider," or, the directory not having supplied the information, you asked the plan — by phone or online — and were "informed through such protocol that the provider was such a participating provider."¹ Either one is enough. The result is that the plan may charge you only in-network cost sharing, and must count what you paid toward the in-network deductible and out-of-pocket maximum.¹
The same federal law makes the plan's information system a duty. A plan must verify and update its directory "not less frequently than once every 90 days," and when someone calls to ask whether a provider is in network, must respond "as soon as practicable and in no case later than 1 business day after such call is received, through a written electronic or print (as requested by such individual) communication," and must keep that communication in your file "for at least 2 years."¹ A written answer from the plan that a therapist is in network is the document this whole page turns on. Ask for it before the first session.
If the provider bills you above in-network cost sharing anyway, and you pay, the provider owes you the difference "plus interest."²
California's directory rules
The state statute is older and more detailed about the directory itself. A plan "shall publish and maintain a provider directory or directories with information on contracting providers," available online "to the public, potential enrollees, enrollees, and providers without any restrictions or limitations" — with no requirement to "provide a member identification or policy number, provide any other identifying information, or create or access an account."³ The online directory must be updated "at least weekly, or more frequently, if required by federal law"; the printed one "at least quarterly."³ Each listing must identify "providers who no longer accept new patients for some or all of the plan's products," and the non-English languages a provider speaks.³ Contracted providers must tell the plan within five business days when they stop accepting new patients or when that changes.³
When someone reports an inaccuracy, "the plan shall promptly investigate the reported inaccuracy and, no later than 30 business days following receipt of the report, either verify the accuracy of the information or update the information in its provider directory or directories," contacting the provider "no later than five business days following receipt of the report" and documenting "the provider's name, location, and a description of the plan's investigation, the outcome of the investigation, and any changes or updates made to its provider directory or directories."³ The plan must give the public "an email address and a telephone number" for exactly this purpose.³
The remedy sits with the regulator. Where the Department "finds that an enrollee reasonably relied upon materially inaccurate, incomplete, or misleading information," it "may require the health plan to provide coverage for all covered health care services provided to the enrollee and to reimburse the enrollee for any amount beyond what the enrollee would have paid, had the services been delivered by an in-network provider under the enrollee's plan contract" — provided the Department first concludes the services were covered services under the contract — and "the fact that the services were rendered or delivered by a noncontracting or out-of-plan provider shall not be used as a basis to deny reimbursement to the enrollee."³ For a policy regulated by the Department of Insurance, the Insurance Code carries the same directory rules and a parallel remedy.⁴
What to keep
- A screenshot of the listing, dated, showing the therapist's name, "in network" for your product, and "accepting new patients."
- The plan's written confirmation — the one-business-day written response the federal law requires when you call to ask.¹
- The claim and the explanation of benefits showing the out-of-network processing.
- Any bill from the therapist above in-network cost sharing.²
What to do, in order
- Report the inaccuracy to the plan in writing, and ask it to reprocess the claim at in-network cost sharing under the No Surprises Act, citing 42 U.S.C. §300gg-115(b) (or 29 U.S.C. §1185i(b) for a self-funded employer plan). The plan must investigate within 30 business days under state law.³
- If the plan refuses, file a grievance, then a complaint with the DMHC Help Center at 1-888-466-2219 (or the Department of Insurance if your policy is regulated by it — the ID card says which), asking the Department to find reasonable reliance under section 1367.27(q). How to file a DMHC complaint →
- If the therapist billed you above in-network cost sharing and you paid, send the therapist the federal provision on refunds with interest.²
- Decide about continuing. If the therapist is out of network, continuity-of-care rules may or may not apply; the page on a therapist leaving the network has the tests. My therapist left my insurance network →
Worked example
A woman searches her HMO's directory in February, finds a psychologist marked in network and accepting new patients, screenshots it, and calls the plan, which confirms by email. She sees the psychologist for eight sessions. In May the claims are processed out of network and the psychologist's office bills her $1,240. Under federal law the plan may charge her only in-network cost sharing for those eight sessions and must credit her deductible as if the sessions were in network;¹ the psychologist must refund anything she paid above that, with interest.² Her report to the plan starts the 30-business-day clock on fixing the listing,³ and if the plan will not reprocess, her complaint to the Department asks for the finding under subdivision (q).³
Q&A
Q: I never called the plan. I just used the website. A: The federal condition is satisfied by information "received through a database, provider directory, or response protocol" — the website counts.¹ The screenshot is your evidence.
Q: The plan says the directory has a disclaimer. A: The federal statute conditions the protection only on the information you "received through a database, provider directory, or response protocol"; it says nothing about disclaimers.¹ The state statute requires the plan to update the online directory at least weekly once a change is confirmed.³
Q: My employer's plan is self-funded. A: The federal No Surprises Act applies to group health plans including self-funded ones, through the parallel ERISA provision; the state statute reaches only DMHC-licensed plans and Department of Insurance-regulated insurers, so it does not reach a self-funded employer plan. Is my plan self-funded? →
Q: The therapist was in network but wasn't taking new patients, and the directory said otherwise. A: That is the inaccuracy the state statute specifically names, with a five-business-day duty on the provider to report the change and a 30-business-day duty on the plan to fix it.³ Report it, and ask the plan for an in-network therapist who is actually available within the timely-access standard. The ten-business-day rule →
Our therapist directory: See its current status →
Sources
- 42 U.S.C. §300gg-115 — (a)(2)(A) verification and updating "not less frequently than once every 90 days"; (a)(3)(A) response to a telephone inquiry "as soon as practicable and in no case later than 1 business day after such call is received, through a written electronic or print (as requested by such individual) communication"; (a)(3)(B) retention of the communication "for at least 2 years following such response"; (b)(1) "For plan years beginning on or after January 1, 2022," the plan "shall not impose on such participant, beneficiary, or enrollee a cost-sharing amount for such item or service so furnished that is greater than the cost-sharing amount that would apply" in network and "shall apply the deductible or out-of-pocket maximum, if any, that would apply if such services were furnished by a participating provider or a participating facility"; (b)(2)(A)–(B) the two reliance conditions as quoted — law.cornell.edu; the parallel provision for self-funded ERISA plans is 29 U.S.C. §1185i — law.cornell.edu.
- 42 U.S.C. §300gg-139(b) — "If a health care provider submits a bill to an enrollee based on cost-sharing for treatment or services provided by the health care provider that is in excess of the normal cost-sharing applied for such treatment or services provided in-network… and the enrollee pays such bill, the provider shall reimburse the enrollee for the full amount paid by the enrollee in excess of the in-network cost-sharing amount for the treatment or services involved, plus interest, at an interest rate determined by the Secretary" — law.cornell.edu.
- Cal. Health & Safety Code §1367.27 — (a) "publish and maintain a provider directory or directories with information on contracting providers"; (c)(1) online availability "without any restrictions or limitations" and without a requirement to "provide a member identification or policy number, provide any other identifying information, or create or access an account"; (e)(1) online updates "at least weekly, or more frequently, if required by federal law"; (d)(2) printed updates "at least quarterly"; (h)(10) non-English languages; (h)(11) "Identification of providers who no longer accept new patients for some or all of the plan's products"; (j)(1) the provider's duty to "inform the plan within five business days" of a change in availability; (o)(1) investigation and correction "no later than 30 business days following receipt of the report"; (o)(2)(A) contact with the provider "no later than five business days" and (o)(2)(B) the documentation required; the public "email address and a telephone number" for reporting; (q) the Department's power to require coverage and reimbursement "for any amount beyond what the enrollee would have paid, had the services been delivered by an in-network provider under the enrollee's plan contract" on a finding of reasonable reliance, the condition that the Department "shall conclude that the services received by the enrollee were covered services under the enrollee's plan contract," and "the fact that the services were rendered or delivered by a noncontracting or out-of-plan provider shall not be used as a basis to deny reimbursement to the enrollee" — california.public.law.
- Cal. Insurance Code §10133.15 — the parallel directory requirements for health insurers, including weekly online updates (e)(1), the 30-business-day investigation (o)(1), and the parallel reimbursement remedy at (q) — california.public.law.
Paid for by participating therapists. Inclusion is computed from availability data — never purchased. No ads, no data sold.