Short answer: It depends on whether the plan ensures adequate access. Federal guidance says a non-grandfathered self-funded plan may treat only providers that accept the reference price as in-network for the out-of-pocket maximum only if it uses a reasonable method to ensure adequate access to quality providers at that price; otherwise those costs must count.
The ACA’s annual limit on cost sharing applies to in-network essential health benefits. The Departments’ FAQ (Part 31, Q7) says a plan that merely sets a reference price, without a reasonable method to ensure adequate access to quality providers who accept it, has not established a network for this purpose, so a member’s out-of-pocket costs at providers who refuse the reference price must count toward the out-of-pocket maximum.
If the plan does use a reasonable access method, it can treat providers that accept the reference price as the only in-network providers and not count amounts paid to others. Earlier guidance listed the factors the Departments consider.
This is a design and documentation question for the plan, its RBP vendor and counsel before launch, and it shapes how members are told about balance bills.