Sec. 402. Preventing surprise medical bills

8,025 words·~36 min read·/bill/116/hr/2328/rh/section-402·

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

Section 2719A(b) of the Public Health Service Act (42 U.S.C. 300gg–19a(b)) is amended— in paragraph (1)— in the matter preceding subparagraph (A)— by striking a group health plan, or a health insurance issuer offering group or individual health insurance issuer, and inserting a health plan (as defined in subsection (e)(2)(A)) ; by inserting or, for plan year 2021 or a subsequent plan year, with respect to emergency services in an independent freestanding emergency department (as defined in paragraph (3)(D)) after emergency department of a hospital ; by striking the plan or issuer and inserting the plan ; and by striking paragraph (2)(B) and inserting paragraph (3)(C) ; in subparagraph (B), by inserting or a participating emergency facility, as applicable, after participating provider ; and in subparagraph (C)— in the matter preceding clause (i), by inserting by a nonparticipating provider or a nonparticipating emergency facility after enrollee ; by striking clause (i); by striking and inserting such services

(I); such services

(i)by striking where the provider of services does not have a contractual relationship with the plan for the providing of services ; by striking emergency department services received from providers who do have such a contractual relationship with the plan; and and inserting emergency services received from participating providers and participating emergency facilities with respect to such plan; ; by striking and all that follows through if such services

(II)were provided in-network; and inserting the following: the cost-sharing requirement (expressed as a copayment amount or coinsurance rate) is not greater than the requirement that would apply if such services were provided by a participating provider or a participating emergency facility; ; and by adding at the end the following new clauses: such requirement is calculated as if the total amount that would have been charged for such services by such participating provider or participating emergency facility were equal to— in the case of such services furnished in a State described in paragraph (3)(H)(ii), the median contracted rate (as defined in paragraph (3)(E)(i)) for such services; and in the case of such services furnished in a State described in paragraph (3)(H)(i), the lesser of— the amount determined by such State for such services in accordance with the method described in such paragraph; and the median contracted rate (as so defined) for such services; the health plan pays to such provider or facility, respectively, the amount by which the recognized amount (as defined in paragraph (3)(H)) for such services exceeds the cost-sharing amount for such services (as determined in accordance with clauses

(ii)and (iii)); and any cost-sharing payments made by the participant, beneficiary, or enrollee with respect to such emergency services so furnished shall be counted toward any in-network deductible or out-of-pocket maximums applied under the plan (and such in-network deductible shall be applied) in the same manner as if such cost-sharing payments were with respect to emergency services furnished by a participating provider and a participating emergency facility; and ; by redesignating paragraph

(2)as paragraph (3); by inserting after paragraph

(1)the following new paragraph: Not later than July 1, 2020, the Secretary, in consultation with appropriate State agencies, shall establish through rulemaking a process, in accordance with subparagraph (B), under which health plans are audited by such Secretaries to ensure that— such plans are in compliance with the requirement of applying a median contracted rate under this section; and that such median contracted rate so applied satisfies the definition under paragraph (3)(E) with respect to the year involved, including with respect to a health plan described in clause

(ii)of such paragraph. Under the process established pursuant to subparagraph (A), the Secretary— shall conduct audits described in such subparagraph, with respect to a year (beginning with 2021), of a sample with respect to such year of claims data from not more than 25 health plans; and may audit any health plan if the Secretary has received any complaint about such plan that involves the compliance of the plan with either of the requirements described in clauses

(i)and

(ii)of such subparagraph. ; and in paragraph (3), as redesignated by paragraph

(2)of this subsection— in the matter preceding subparagraph (A), by inserting and subsection

(e)after this subsection ; by redesignating subparagraphs

(A)through

(C)as subparagraphs

(B)through (D), respectively; by inserting before subparagraph (B), as redesignated by subparagraph

(B)of this paragraph, the following new subparagraph: The term emergency department of a hospital includes a hospital outpatient department that provides emergency services. ; by amending subparagraph (C), as redesignated by subparagraph

(B)of this paragraph, to read as follows: The term emergency services , with respect to an emergency medical condition, means— a medical screening examination (as required under section 1867 of the Social Security Act, or as would be required under such section if such section applied to an independent freestanding emergency department) that is within the capability of the emergency department of a hospital or of an independent freestanding emergency department, as applicable, including ancillary services routinely available to the emergency department to evaluate such emergency medical condition; and within the capabilities of the staff and facilities available at the hospital or the independent freestanding emergency department, as applicable, such further medical examination and treatment as are required under section 1867 of such Act, or as would be required under such section if such section applied to an independent freestanding emergency department, to stabilize the patient. For purposes of this subsection and section 2799, in the case of an individual enrolled in a health plan who is furnished services described in clause

(i)by a provider or facility to stabilize such individual with respect to an emergency medical condition, the term emergency services shall include such items and services in addition to those described in clause

(i)that such a provider or facility determines are needed to be furnished (after such stabilization but during such visit in which such individual is so stabilized) to such individual, unless each of the following conditions are met: Such a provider or facility determines such individual is able to travel using nonmedical transportation or nonemergency medical transportation. Such provider furnishing such additional items and services is in compliance with section 2799A(d) with respect to such items and services. ; by redesignating subparagraph (D), as redesignated by subparagraph

(B)of this paragraph, as subparagraph (I); and by inserting after subparagraph (C), as redesignated by subparagraph

(B)of this paragraph, the following new subparagraphs: The term independent freestanding emergency department means a facility that— is geographically separate and distinct and licensed separately from a hospital under applicable State law; and provides emergency services. The term median contracted rate means, with respect to an item or service and a health plan (as defined in subsection (e)(2)(A))— for 2021, the median of the negotiated rates recognized by the sponsor or issuer of such plan (determined with respect to all such plans of such sponsor or such issuer that are within the same line of business) as the total maximum payment (including the cost-sharing amount imposed for such services (as determined in accordance with clauses

(ii)and

(iii)of paragraph (1)(C) or subparagraphs

(A)and

(B)of subsection (e)(1), as applicable) and the amount to be paid by the plan or issuer) under such plans in 2019 for the same or a similar item or service that is provided by a provider in the same or similar specialty and provided in the geographic region in which the item or service is furnished, consistent with the methodology established by the Secretary under section 402(e) of the No Surprises Act, increased by the percentage increase in the consumer price index for all urban consumers (United States city average) over 2019 and 2020; and for 2022 and each subsequent year, the median contracted rate determined under this clause for the previous year, increased by the percentage increase in the consumer price index for all urban consumers (United States city average) over such previous year. The Secretary shall provide pursuant to rulemaking described in section 402(e) of the No Surprises Act that— if the sponsor or issuer of a health plan does not have sufficient information to calculate a median contracted rate for an item or service or provider type, or amount of, claims for items or services (as determined by the Secretary) provided in a particular geographic area (other than in a case described in item (bb)), such sponsor or issuer shall demonstrate that such sponsor or issuer will use any database free of conflicts of interest that has sufficient information reflecting allowed amounts paid to a health care provider for relevant services provided in the applicable geographic region (such as State All Payer Claims Databases (as defined in section 404(d) of such Act)), and that such sponsor or issuer will use any such database to determine a median contracted rate and cover the cost of accessing any such database; and in the case of a sponsor or issuer offering a health plan in a geographic region that did not offer any health plan in such region during 2019, such sponsor or issuer shall use a methodology established by the Secretary for determining the median contracted rate for items and services covered by such plan for the first year in which such plan is offered in such region, and that, for each succeeding year, the median contracted rate for such items and services under such plan shall be the median contracted rate for such items and services under such plan for the previous year, increased by the percentage increase in the consumer price index for all urban consumers (United States city average) over such previous year. The term nonparticipating emergency facility means, with respect to an item or service and a health plan, an emergency department of a hospital, or an independent freestanding emergency department, that does not have a contractual relationship with the plan (or, if applicable, issuer offering the plan) for furnishing such item or service under the plan. The term participating emergency facility means, with respect to an item or service and a health plan, an emergency department of a hospital, or an independent freestanding emergency department, that has a contractual relationship with the plan (or, if applicable, issuer offering the plan) for furnishing such item or service under the plan. The term nonparticipating provider means, with respect to an item or service and a health plan, a physician or other health care provider who is acting within the scope of practice of that provider’s license or certification under applicable State law and who does not have a contractual relationship with the plan (or, if applicable, issuer offering the plan) for furnishing such item or service under the plan. The term participating provider means, with respect to an item or service and a health plan, a physician or other health care provider who is acting within the scope of practice of that provider’s license or certification under applicable State law and who has a contractual relationship with the plan (or, if applicable, issuer offering the plan) for furnishing such item or service under the plan. The term recognized amount means, with respect to an item or service— in the case of such item or service furnished in a State that has in effect a State law that provides for a method for determining the amount of payment that is required to be covered by a health plan regulated by such State in the case of a participant, beneficiary, or enrollee covered under such plan and receiving such item or service from a nonparticipating provider or facility, not more than the amount determined in accordance with such law plus the cost-sharing amount imposed under the plan for such item or service (as determined in accordance with clauses

(ii)and

(iii)of paragraph (1)(C) or subparagraphs

(A)and

(B)of subsection (e)(1), as applicable); or in the case of such item or service furnished in a State that does not have in effect such a law, an amount that is at least the median contracted rate (as defined in subparagraph (E)(i) and determined in accordance with rulemaking described in section 402(e) of the No Surprises Act) for such item or service. . Section 2719A of the Public Health Service Act ( 42 U.S.C. 300gg–19a ) is amended by adding at the end the following new subsections: Subject to paragraph (3), in the case of items or services (other than emergency services to which subsection

(b)applies) furnished to a participant, beneficiary, or enrollee of a health plan (as defined in paragraph (2)(A)) by a nonparticipating provider (as defined in subsection (b)(3)(G)(i)) during a visit (as defined by the Secretary in accordance with paragraph (2)(C)) at a participating health care facility (as defined in paragraph (2)(B)), with respect to such plan, the plan— shall not impose on such participant, beneficiary, or enrollee a cost-sharing amount (expressed as a copayment amount or coinsurance rate) for such items and services so furnished that is greater than the cost-sharing amount that would apply under such plan had such items or services been furnished by a participating provider (as defined in subsection (b)(3)(G)(ii)); shall calculate such cost-sharing amount as if the amount that would have been charged for such items and services by such participating provider were equal to— in the case of such items and services furnished in a State described in subsection (b)(3)(H)(ii), the median contracted rate (as defined in subsection (b)(3)(E)(i)) for such items and services; and in the case of such items and services furnished in a State described in subsection (b)(3)(H)(i), the lesser of— the amount determined by such State for such items and services in accordance with the method described in such subsection; and the median contracted rate (as so defined) for such items and services; shall pay to such provider furnishing such items and services to such participant, beneficiary, or enrollee the amount by which the recognized amount (as defined in subsection (b)(3)(H)) for such items and services exceeds the cost-sharing amount imposed under the plan for such items and services (as determined in accordance with subparagraphs

(A)and (B)); and shall count toward any in-network deductible or out-of-pocket maximums applied under the plan any cost-sharing payments made by the participant, beneficiary, or enrollee (and such in-network deductible shall be applied) with respect to such items and services so furnished in the same manner as if such cost-sharing payments were with respect to items and services furnished by a participating provider. In this subsection and subsection (b): The term health plan means a group health plan and health insurance coverage offered by a heath insurance issuer in the group or individual market and includes a grandfathered health plan (as defined in section 1251(e) of the Patient Protection and Affordable Care Act). The term participating health care facility means, with respect to an item or service and a health plan, a health care facility described in clause

(ii)that has a contractual relationship with the plan (or, if applicable, issuer offering the plan) for furnishing such item or service. A health care facility described in this clause is each of the following: A hospital (as defined in 1861(e) of the Social Security Act). A critical access hospital (as defined in section 1861(mm) of such Act). An ambulatory surgical center (as defined in section 1833(i)(1)(A) of such Act). A laboratory. A radiology facility or imaging center. The term during a visit shall, with respect to items and services furnished to an individual at a participating health care facility, include equipment and devices, telemedicine services, imaging services, laboratory services, and such other items and services as the Secretary may specify, regardless of whether or not the provider furnishing such items or services is at the facility. Paragraph

(1)shall not apply to a health plan in the case of items or services (other than emergency services to which subsection

(G)of subsection (b)(3)), nonparticipating emergency facility (as defined in subparagraph

(F)of such subsection), or health plan (as defined in subsection (e)(2)(A)) may submit a request for resolution by an entity certified under paragraph

(2)(in this subsection referred to as a certified IDR entity ) of a specified claim; and in the case a settlement described in subparagraph

(B)of paragraph

(4)is not reached with respect to such claim, such entity so resolves such claim in accordance with such paragraph. In this subsection: Subject to subclause (II), the term specified claim means a claim by a nonparticipating provider, a nonparticipating emergency facility, or a health plan with respect to qualifying items and services (as defined in clause (ii)) furnished by such provider or facility in a State described in subparagraph (H)(ii) of subsection (b)(3) for which a health plan is required to make payment pursuant to subsection (b)(1) or subsection (e)(1)— that such payment should be increased or decreased; and that is made not later than— in the case of such a claim filed by such a provider or facility, the date on which the appeal with respect to such items and services described in clause (ii)(I)(aa)(AA) has been resolved (or the date that is 30 days after such appeal is filed, whichever is earlier); or in the case of such a claim filed by such plan, the date on which the period described in clause (ii)(I)(bb)(BB) with respect to such items and services elapses. The term specified claim shall not include, in the case such claim is made by such provider, facility, or plan with respect to multiple items and services, any claim with respect to items and services furnished by such provider or facility if— such items and services were not furnished by the same provider or facility; payment for such items and services made pursuant to subsection (b)(1) or subsection (e)(1) was made by multiple health plans; such items and services are not related to the treatment of the same condition; or such items and services were not furnished within 30 days of the date of the earliest item or service furnished that is included in such claim. Subject to subclause (II), the term qualifying items and services means— with respect to a specified claim made by a nonparticipating provider or nonparticipating emergency facility, items and services furnished by such provider or facility for which a health plan is required to make payment pursuant to subsection (b)(1) or subsection (e)(1), but only if— such items and services are included in an appeal filed under such plan’s internal appeals process not later than 30 days after such payment is received; and such appeal under such plan’s internal appeals process has been resolved, or a 30-day period has elapsed since such appeal was so filed; and with respect to a specified claim made by a health plan, items and services furnished by such a provider or facility for which such health plan is required to make payment pursuant to subsection (b)(1) or subsection (e)(1), but only if— such plan submits a notice to such provider or facility not later than 30 days after such provider or facility receives such payment that such plan disputes the amount of such payment with respect to such items and services; and a 30-day period has elapsed since the submission of such notice. The term qualifying items and services shall not include an item or service furnished in a geographic area during a year by such provider or facility for which a health plan is required to make payment pursuant to subsection (b)(1) or subsection (e)(1) if the median contracted rate (as defined in subsection (b)(3)(E)) under such plan for such year with respect to such item or service furnished by such a provider or such a facility in such area does not exceed— with respect to an item or service furnished during 2021, $1,250; and with respect to an item or service furnished during a subsequent year, the amount specified under this subclause for the previous year, increased by the percentage increase in the consumer price index for all urban consumers (United States city average) over such previous year. The process described in paragraph

(1)shall include a certification process under which eligible entities may be certified to carry out the IDR process. For purposes of subparagraph (A), an eligible entity is an entity that is a nongovernmental entity that agrees to comply with the fee limitations described in clause (ii). For purposes of clause (i), the fee limitations described in this clause are limitations established by the Secretary on the amount a certified IDR entity may charge a nonparticipating provider, nonparticipating emergency facility, or health plan for services furnished by such entity with respect to the resolution of a specified claim of such provider, facility, or plan under the process described in paragraph (1). With respect to the resolution of a specified claim under the IDR process, the health plan and the nonparticipating provider or the nonparticipating emergency facility (as applicable) involved shall agree on a certified IDR entity to resolve such claim. In the case that such plan and such provider or facility (as applicable) cannot so agree, such an entity shall be selected by the Secretary at random. A certified IDR entity selected under paragraph

(3)by a health plan and a nonparticipating provider or a nonparticipating emergency facility (as applicable) with respect to a specified claim shall, subject to subparagraph (B), not later than 30 days after being so selected, determine the total reimbursement that should have been made for items and services included in such claim in accordance with subparagraph (C). If such entity determines that a settlement between the health plan and the provider or facility is likely with respect to a specified claim, the entity may direct the parties to attempt, for a period not to exceed 10 days, a good faith negotiation for a settlement of such claim. The period for a settlement described in clause

(i)shall accrue towards the 30-day period described in subparagraph (A). The health plan and the nonparticipating provider or nonparticipating emergency facility (as applicable) shall, with respect to a specified claim, each submit to the certified IDR entity a final offer of payment or reimbursement (as applicable) with respect to items and services which are the subject of the specified claim. Such entity shall determine which such offer is the most reasonable in accordance with clause (ii). In determining which final offer is the most reasonable under clause (i), the certified IDR entity shall consider— the median contracted rates (as defined in subsection (b)(3)(E)) for items or services that are comparable to the items and services included in the specified claim and that are furnished in the same geographic area (as defined by the Secretary for purposes of such subsection) as such items and services (not including any facility fees with respect to such rates); and the circumstances described in subclause (II), if any information with respect to such circumstances is submitted by either party. For purposes of subclause (I)(bb), the circumstances described in this subclause are, with respect to items and services included in the specified claim of a nonparticipating provider, nonparticipating emergency facility, or health plan, the following: The level of training, education, experience, and quality and outcomes measurements of the provider or facility that furnished such items and services. Any other extenuating circumstances with respect to the furnishing of such items and services that relate to the acuity of the individual receiving such items and services or the complexity of furnishing such items and services to such individual. In determining which final offer is the most reasonable under clause

(i)with respect to items and services furnished by a provider or facility and included in a specified claim, the certified IDR entity may not consider the amount that would have been billed by such provider or facility with respect to such items and services had the provisions of section 2799 or 2799A (as applicable) not applied. A determination of a certified IDR entity under clause (i)— shall be binding; and shall not be subject to judicial review, except in a case described in any of paragraphs

(1)through

(4)of section 10(a) of title 9, United States Code. In the case of a specified claim made by a nonparticipating provider, nonparticipating emergency facility, or health plan and submitted to a certified IDR entity— if such entity makes a determination with respect to such claim under clause (i), the party whose offer is not chosen under such clause shall be responsible for paying all fees charged by such entity; and if the parties reach a settlement with respect to such claim prior to such a determination, such fees shall be divided equally between the parties, unless the parties otherwise agree. Not later than 30 days after a determination described in clause

(i)is made with respect to a specified claim of a nonparticipating provider, nonparticipating emergency facility, or health plan— in the case that such determination finds that the amount paid with respect to such specified claim by the health plan should have been greater than the amount so paid, such plan shall pay directly to the provider or facility (as applicable) the difference between the amount so paid and the amount so determined; and in the case that such determination finds that the amount paid with respect to such specified claim by the health plan should have been less than the amount so paid, the provider or facility (as applicable) shall pay directly to the plan the difference between the amount so paid and the amount so determined. For 2021 and each subsequent year, the Secretary and the Secretary of Labor shall publish on the public website of the Department of Health and Human Services and the Department of Labor, respectively— the number of specified claims filed during such year; the number of such claims with respect to which a final determination was made under paragraph (4)(C)(i); and the information described in subparagraph

(B)with respect to each specified claim with respect to which such a decision was so made. For purposes of subparagraph (A), the information described in this subparagraph is, with respect to a specified claim of a nonparticiapting provider, nonparticipating emergency facility, or health plan— a description of each item and service included in such claim; the amount of the offer submitted under paragraph (4)(C)(i) by the health plan and by the nonparticipating provider or nonparticipating emergency facility (as applicable); whether the offer selected by the certified IDR entity under such paragraph was the offer submitted by such plan or by such provider or facility (as applicable) and the amount of such offer so selected; and the category and practice specialty of each such provider or facility involved in furnishing such items and services. None of the information published under this paragraph may specify the identity of a health plan, provider, facility, or individual with respect to a specified claim. . Section 2719A of the Public Health Service Act, as amended by subsection (b), is further amended by adding at the end the following new subsections: Not later than 1 year after the date of the enactment of this subsection, each group health plan and health insurance issuer offering group or individual health insurance coverage shall— establish the verification process described in paragraph (2); establish the response protocol described in paragraph (3); establish the database described in paragraph (4); and include in any print directory containing provider directory information with respect to such plan or such coverage the information described in paragraph (5). The verification process described in this paragraph is, with respect to a group health plan or a health insurance issuer offering group or individual health insurance coverage, a process— under which not less frequently than once every 90 days, such plan or such issuer (as applicable) verifies and updates the provider directory information included on the database described in paragraph

(4)of such plan or issuer of each health care provider and health care facility included in such database; and that establishes a procedure for the removal of such a provider or facility with respect to which such plan or issuer has been unable to verify such information during a period specified by the plan or issuer. The response protocol described in this paragraph is, in the case of an individual enrolled under a group health plan or group or individual health insurance coverage offered by a health insurance issuer who requests information on whether a health care provider or health care facility has a contractual relationship to furnish items and services under such plan or such coverage, a protocol under which such plan or such issuer (as applicable), in the case such request is made through a telephone call— responds to such individual as soon as practicable and in no case later than 1 business day after such call is received through a written electronic communication; and retains such communication in such individual’s file for at least 2 years following such response. The database described in this paragraph is, with respect to a group health plan or health insurance issuer offering group or individual health insurance coverage, a database on the public website of such plan or issuer that contains— a list of each health care provider and health care facility with which such plan or such issuer has a contractual relationship for furnishing items and services under such plan or such coverage; and provider directory information with respect to each such provider and facility. The information described in this paragraph is, with respect to a print directory containing provider directory information with respect to a group health plan or individual or group health insurance coverage offered by a health insurance issuer, a notification that such information contained in such directory was accurate as of the date of publication of such directory and that an individual enrolled under such plan or such coverage should consult the database described in paragraph

(4)with respect to such plan or such coverage or contact such plan or the issuer of such coverage to obtain the most current provider directory information with respect to such plan or such coverage. For purposes of this subsection, the term provider directory information includes, with respect to a group health plan and a health insurance issuer offering group or individual health insurance coverage, the name, address, specialty, and telephone number of each health care provider or health care facility with which such plan or such issuer has a contractual relationship for furnishing items and services under such plan or such coverage. Each group health plan and health insurance issuer offering group or individual health insurance coverage shall make publicly available, and (if applicable) post on a public website of such plan or issuer— information in plain language on— the requirements and prohibitions applied under sections 2799 and 2799A (relating to prohibitions on balance billing in certain circumstances); if provided for under applicable State law, any other requirements on providers and facilities regarding the amounts such providers and facilities may, with respect to an item or service, charge a participant, beneficiary, or enrollee of such plan or coverage with respect to which such a provider or facility does not have a contractual relationship for furnishing such item or service under the plan or coverage after receiving payment from the plan or coverage for such item or service and any applicable cost-sharing payment from such participant, beneficiary, or enrollee; and the requirements applied under subsections

(b)and (e); and information on contacting appropriate State and Federal agencies in the case that an individual believes that such a provider or facility has violated any requirement described in paragraph

(1)with respect to such individual. . Title XXVII of the Public Health Service Act is amended by adding at the end the following new part: In the case of a participant, beneficiary, or enrollee with benefits under a health plan who is furnished on or after January 1, 2021, emergency services with respect to an emergency medical condition during a visit at an emergency department of a hospital or an independent freestanding emergency department— the emergency department of a hospital or independent freestanding emergency department shall not hold the participant, beneficiary, or enrollee liable for a payment amount for such emergency services so furnished that is more than the cost-sharing amount for such services (as determined in accordance with clauses

(ii)and

(iii)of section 2719A(b)(1)(C)); and a health care provider shall not hold such participant, beneficiary, or enrollee liable for a payment amount for an emergency service furnished to such individual by such provider with respect to such emergency medical condition and visit for which the individual receives emergency services at the hospital or emergency department that is more than the cost-sharing amount for such services furnished by the provider (as determined in accordance with clauses

(ii)and

(iii)of section 2719A(b)(1)(C)). In this section: The terms emergency department of a hospital , emergency medical condition , emergency services , and independent freestanding emergency department have the meanings given such terms, respectively, in section 2719A(b)(3). The term health plan has the meaning given such term in section 2719A(e). The term during a visit shall have such meaning as applied to such term for purposes of section 2719A(e). Subject to subsection (b), in the case of a participant, beneficiary, or enrollee with benefits under a health plan (as defined in section 2799(b)) who is furnished on or after January 1, 2021, items or services (other than emergency services to which section 2799 applies) at a participating health care facility by a nonparticipating provider, such provider shall not hold such participant, beneficiary, or enrollee liable for a payment amount for such an item or service furnished by such provider during a visit at such facility that is more than the cost-sharing amount for such item or service (as determined in accordance with subparagraphs

(A)and

(B)of section 2719A(e)(1)). Subsection

(a)shall not apply to a nonparticipating provider (other than a specified provider at a participating health care facility), with respect to items or services furnished by the provider to a participant, beneficiary, or enrollee of a health plan, if the provider is in compliance with the notice and consent requirements of subsection (d). For purposes of paragraph (1), the term specified provider , with respect to a participating health care facility— means a facility-based provider, including emergency medicine providers, anesthesiologists, pathologists, radiologists, neonatologists, assistant surgeons, hospitalists, intensivists, or other providers as determined by the Secretary; and includes, with respect to an item or service, a nonparticipating provider if there is no participating provider at such facility who can furnish such item or service. In the case of a nonparticipating provider (other than a specified provider at a participating health care facility) that complies with the notice and consent requirements of subsection

(d)with respect to an item or service (referred to in this subsection as a covered item or service ), such notice and consent requirements may not be construed as applying with respect to any item or service that is furnished as a result of unforeseen medical needs that arise at the time such covered item or service is furnished. A nonparticipating provider or nonparticipating facility is in compliance with this subsection, with respect to items or services furnished by the provider or facility to a participant, beneficiary, or enrollee of a health plan, if the provider (or, if applicable, the participating health care facility on behalf of such provider) or nonparticipating facility— provides to the participant, beneficiary, or enrollee (or to an authorized representative of the participant, beneficiary, or enrollee) on the date on which the individual is furnished such items or services and, in the case that the participant, beneficiary, or enrollee makes an appointment to be furnished such items or services, on such date the appointment is made— an oral explanation of the written notice described in clause (ii); and a written notice specified by the Secretary, not later than July 1, 2020, through guidance (which shall be updated as determined necessary by the Secretary) that— contains the information required under paragraph (2); and is signed and dated by the participant, beneficiary, or enrollee (or by an authorized representative of the participant, beneficiary, or enrollee) and, with respect to items or services to be furnished by such a provider that are not poststabilization services described in section 2719A(b)(3)(C)(ii), is so signed and dated not less than 72 hours prior to the participant, beneficiary, or enrollee being furnished such items or services by such provider; and obtains from the participant, beneficiary, or enrollee (or from such an authorized representative) the consent described in paragraph (3). For purposes of paragraph (1)(A)(ii)(I), the information described in this paragraph, with respect to a nonparticipating provider or nonparticipating facility and a participant, beneficiary, or enrollee of a health plan, is each of the following: Notification, as applicable, that the health care provider is a nonparticipating provider with respect to the health plan or the health care facility is a nonparticipating facility with respect to the health plan. Notification of the estimated amount that such provider or facility may charge the participant, beneficiary, or enrollee for such items and services involved. In the case of a nonparticipating facility, a list of any participating providers at the facility who are able to furnish such items and services involved and notification that the participant, beneficiary, or enrollee may be referred, at their option, to such a participating provider. For purposes of paragraph (1)(B), the consent described in this paragraph, with respect to a participant, beneficiary, or enrollee of a health plan who is to be furnished items or services by a nonparticipating provider or nonparticipating facility, is a document specified by the Secretary through rulemaking that— is signed by the participant, beneficiary, or enrollee (or by an authorized representative of the participant, beneficiary, or enrollee) and, with respect to items or services to be furnished by such a provider or facility that are not poststabilization services described in section 2719A(b)(3)(C)(ii), is so signed not less than 72 hours prior to the participant, beneficiary, or enrollee being furnished such items or services by such provider or facility; acknowledges that the participant, beneficiary, or enrollee has been— provided with a written estimate and an oral explanation of the charge that the participant, beneficiary, or enrollee will be assessed for the items or services anticipated to be furnished to the participant, beneficiary, or enrollee by such provider or facility; and informed that the payment of such charge by the participant, beneficiary, or enrollee may not accrue toward meeting any limitation that the health plan places on cost-sharing; and documents the consent of the participant, beneficiary, or enrollee to— be furnished with such items or services by such provider or facility; and in the case that the individual is so furnished such items or services, be charged an amount that may be greater than the amount that would otherwise be charged the individual if furnished by a participating provider or participating facility with respect to such items or services and plan. A nonparticipating provider (or, in the case of a nonparticipating provider at a participating health care facility, such facility) or nonparticipating facility that obtains from a participant, beneficiary, or enrollee of a health plan (or an authorized representative of such participant, beneficiary, or enrollee) a written notice in accordance with subsection (c)(1)(ii), with respect to furnishing an item or service to such participant, beneficiary, or enrollee, shall retain such notice for at least a 2-year period after the date on which such item or service is so furnished. In this section: The terms nonparticipating provider and participating provider have the meanings given such terms, respectively, in subsection (b)(3) of section 2719A. The terms participating health care facility and health plan have the meanings given such terms, respectively, in subsection (e)(2) of section 2719A. The term nonparticipating facility means— with respect to emergency services (as defined in section 2719A(b)(3)(C)(i)) and a health plan, an emergency department of a hospital, or an independent freestanding emergency department, that does not have a contractual relationship with the plan (or, if applicable, issuer offering the plan) for furnishing such services under the plan; and with respect to poststabilization services described in section 2719A(b)(3)(C)(ii) and a health plan, an emergency department of a hospital (or other department of such hospital), or an independent freestanding emergency department, that does not have a contractual relationship with the plan (or, if applicable, issuer offering the plan) for furnishing such services under the plan. The term participating facility means— with respect to emergency services (as defined in section 2719A(b)(3)(C)(i)) and a health plan, an emergency department of a hospital, or an independent freestanding emergency department, that has a contractual relationship with the plan (or, if applicable, issuer offering the plan) for furnishing such services under the plan; and with respect to poststabilization services described in section 2719A(b)(3)(C)(ii) and a health plan, an emergency department of a hospital (or other department of such hospital), or an independent freestanding emergency department, that has a contractual relationship with the plan (or, if applicable, issuer offering the plan) for furnishing such services under the plan. Not later than 1 year after the date of the enactment of this section, each health care provider and health care facility shall establish a process under which such provider or facility transmits, to each health insurance issuer offering group or individual health insurance coverage and group health plan with which such provider or facility has in effect a contractual relationship for furnishing items and services under such coverage or such plan, provider directory information (as defined in section 2719A(g)(6)) with respect to such provider or facility, as applicable. Such provider or facility shall so transmit such information to such issuer offering such coverage or such group health plan— when the provider or facility enters into such a relationship with respect to such coverage offered by such issuer or with respect to such plan; when the provider or facility terminates such relationship with respect to such coverage offered by such issuer or with respect to such plan; when there are any other material changes to such provider directory information of the provider or facility with respect to such coverage offered by such issuer or with respect to such plan; and at any other time (including upon the request of such issuer or plan) determined appropriate by the provider, facility, or the Secretary. Each health care provider and health care facility shall make publicly available, and (if applicable) post on a public website of such provider or facility— information in plain language on— the requirements and prohibitions of such provider or facility under sections 2799 and 2799A (relating to prohibitions on balance billing in certain circumstances); and if provided for under applicable State law, any other requirements on such provider or facility regarding the amounts such provider or facility may, with respect to an item or service, charge a participant, beneficiary, or enrollee of a health plan (as defined in section 2719A(e)(2)) with respect to which such provider or facility does not have a contractual relationship for furnishing such item or service under the plan after receiving payment from the plan for such item or service and any applicable cost-sharing payment from such participant, beneficiary, or enrollee; and information on contacting appropriate State and Federal agencies in the case that an individual believes that such provider or facility has violated any requirement described in paragraph

(1)with respect to such individual. Each State may require a provider or health care facility subject to the requirements of sections 2719A(f), 2799, 2799A, 2799B, or 2799C to satisfy such requirements applicable to the provider or facility. In the case of a determination by the Secretary that a State has failed to substantially enforce the requirements specified in paragraph

(1)with respect to applicable providers and facilities in the State, the Secretary shall enforce such requirements under subsection

(b)insofar as they relate to violations of such requirements occurring in such State. If a provider or facility is found to be in violation specified in subsection (a)(1) by the Secretary, the Secretary may apply a civil monetary penalty with respect to such provider or facility in an amount not to exceed $10,000 per violation. The provisions of subsections (c), (d), (e), (g), (h), (k), and

(l)of section 1128A of the Social Security Act shall apply to a civil monetary penalty or assessment under this subsection in the same manner as such provisions apply to a penalty, assessment, or proceeding under subsection

(a)of such section. The provisions of paragraph

(1)shall apply to enforcement of a provision (or provisions) specified in subsection (a)(1) only as provided under subsection (a)(2). The Secretary shall, through rulemaking, establish a process to receive consumer complaints of violations of such provisions and resolve such complaints within 60 days of receipt of such complaints. The Secretary shall waive the penalties described under paragraph

(1)with respect to a facility or provider who does not knowingly violate, and should not have reasonably known it violated, section 2799 or 2799A with respect to a participant, beneficiary, or enrollee, if such facility or practitioner, within 30 days of the violation, withdraws the bill that was in violation of such provision and reimburses the health plan or enrollee, as applicable, in an amount equal to the difference between the amount billed and the amount allowed to be billed under the provision, plus interest, at an interest rate determined by the Secretary. The Secretary may establish a hardship exemption to the penalties under this subsection. The sections specified in subsection (a)(1) shall not be construed to supersede any provision of State law which establishes, implements, or continues in effect any requirement or prohibition except to the extent that such requirement or prohibition prevents the application of a requirement or prohibition of such a section. . Not later than July 1, 2020, the Secretary of Health and Human Services, jointly with the Secretary of Labor, shall establish through rulemaking— the methodology the sponsor or issuer of a health plan (as defined in subsection

(e)of section 2719A of the Public Health Service Act ( 42 U.S.C. 300gg–19a ), as added by subsection

(b)of this section) shall use to determine the median contracted rate (as defined in section 2719A(b) of such Act, as amended by subsection

(a)of this section), differentiating by business line; the information such sponsor or issuer shall share with the nonparticipating provider (as defined in such section) involved when making such a determination; and the geographic regions applied for purposes of subparagraph

(E)of section 2719A(b)(3), as amended by subsection

(a)of this section, taking into account the needs of rural and underserved areas, including health professional shortage areas. Such rulemaking shall take into account payments that are made by such sponsor or issuer that are not on a fee-for-service basis. Such methodology may account for relevant payment adjustments that take into account facility type (including higher acuity settings and the case-mix of various facility types) that are otherwise taken into account for purposes of determining payment amounts with respect to participating facilities. The amendments made by subsections

(a)and

(b)shall apply with respect to plan years beginning on or after January 1, 2021.

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42 USC 300gg–19a(b)
42 USC 300gg–19a

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cites case law

Sec. 402

Preventing surprise medical bills

Cite42 USC 300gg–19a(b)

Cite42 USC 300gg–19a

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