Bills Sec. 2 — Consumer protections through requireme…

Section 2719A of the Public Health Service Act ( 42 U.S.C. 300gg–19a ) is amended— in subsection (b)— in the heading, by striking and inserting Coverage ; Cost-Sharing and payment 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 ; by inserting and, for plan year 2022 or a subsequent plan year, with respect to emergency services in an independent freestanding emergency department after emergency department of a hospital ; by striking the plan or issuer and inserting the plan ; and by striking (as defined in paragraph (2)(B)) ; in subparagraph (B), by inserting or a participating facility that is an emergency department of a hospital or an independent freestanding emergency department (in this subsection referred to as a after participating emergency facility ) participating provider ; and in subparagraph (C)— in the matter preceding clause (i), by inserting by a nonparticipating provider or a nonparticipating facility that is an emergency department of a hospital or an independent freestanding emergency department 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 is not greater than the requirement that would apply if such services were furnished by a participating provider or a participating emergency facility, as applicable; ; and by adding at the end the following new clauses: such cost-sharing requirement is calculated as if the contracted rate for such services if furnished by a participating provider or a participating emergency facility were equal to the recognized amount for such services; the health plan pays to such provider or facility, respectively, the amount by which the out-of-network rate for such services exceeds the cost-sharing amount for such services (as determined in accordance with clauses

(ii)and (iii)); and any deductible or out-of-pocket maximum that would apply if such services were furnished by a participating provider or a participating emergency facility shall be the deductible or out-of-pocket maximum that applies; and ; and by striking paragraph

(2)and inserting the following new paragraph: Not later than July 1, 2021, the Secretary, in coordination with the Secretary of the Treasury and the Secretary of Labor and in consultation with the National Association of Insurance Commissioners, shall establish through rulemaking a process, in accordance with clause (ii), under which health plans are audited by the Secretary 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 subsection (k)(8) with respect to the year involved. Under the process established pursuant to clause (i), the Secretary— shall conduct audits described in such clause of a sample of 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 the requirement described in such clause. Not later than July 1, 2021, the Secretary, in coordination with the Secretary of Labor and the Secretary of the Treasury, shall establish through rulemaking— the methodology the sponsor or issuer of a health plan shall use to determine the median contracted rate, which shall account for relevant payment adjustments that take into account facility type that are otherwise taken into account for purposes of determining payment amounts with respect to participating facilities; and the information such sponsor or issuer shall share with the nonparticipating provider involved when making such a determination. ; and by adding at the end the following new subsection: For purposes of this section: The term contracted rate means, with respect to a health plan and a health care provider or health care facility furnishing an item or service to a beneficiary, participant, or enrollee of such plan, the agreed upon total payment amount (inclusive of any cost-sharing) to such provider or facility for such item or service. The term during a visit shall, with respect to an individual who is furnished items and services at a participating facility, include equipment and devices, telemedicine services, imaging services, laboratory services, preoperative and postoperative services, and such other items and services as the Secretary may specify furnished to such individual, regardless of whether or not the provider furnishing such items or services is at the facility. The term emergency department of a hospital includes a hospital outpatient department that provides emergency services. The term emergency medical condition means a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent layperson, who possesses an average knowledge of health and medicine, could reasonably expect the absence of immediate medical attention to result in a condition described in clause (i), (ii), or

(iii)of section 1867(e)(1)(A) of the Social Security Act. 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 (regardless of the department of the hospital in which such further examination or treatment is furnished). In the case of an individual enrolled in a health plan who is furnished services described in subparagraph

(A)by a provider or hospital or independent freestanding emergency department to stabilize such individual with respect to an emergency medical condition, the term emergency services shall include, in addition to those described in subparagraph (A), items and services furnished as part of outpatient observation or an inpatient or outpatient stay during a visit in which such individual is so stabilized with respect to such emergency condition if— such items and services would otherwise be covered under such plan if furnished by a participating provider or participating facility; and such items and services are furnished— to maintain, improve, or resolve the individual’s stabilization with respect to such condition, unless any circumstance described in subparagraph

(C)has occurred with respect to such individual before such items and services are furnished; or for any purpose not described in subclause (I), unless each of the criteria described in subparagraph

(D)have been met with respect to such individual and such item or service. For purposes of subparagraph (B)(ii)(I), a circumstance described in this subparagraph is any of the following, with respect to an individual who is a beneficiary, participant, or enrollee of a health plan who is furnished services described in subparagraph

(A)by a hospital or independent freestanding emergency department with respect to an emergency medical condition: A participating provider, with respect to such plan, with privileges at the hospital or independent freestanding emergency department assumes responsibility for the care of the individual. A participating provider, with respect to such plan, assumes responsibility for the care of the individual through transfer of the individual. The health plan and the provider treating such individual at the hospital or independent freestanding emergency department for such condition reach an agreement concerning the care for the individual. The individual is discharged. For purposes of subparagraph (B)(ii)(II), the criteria described in this subparagraph, with respect to an individual and an item or service furnished by a nonparticipating provider or nonparticipating facility that is a hospital or an independent freestanding emergency department, are the following: A written notice (as specified by the Secretary and in a clear and understandable manner) is provided by such provider or facility to such individual, before such item or service is furnished, that includes the following information: That such provider or facility is a nonparticipating provider or nonparticipating facility (as applicable). To the extent practicable, the estimated amount that such nonparticipating facility or nonparticipating provider may charge the individual for such item or service. A statement that the individual may seek such item or service from a provider that is a participating provider or a hospital or independent freestanding emergency department that is a participating facility and a list, if feasible, of participating facilities or participating providers, as applicable, who are able to furnish such item or service. Such individual is in a condition to receive (as determined in accordance with guidance issued by the Secretary) the information described in clause

(i)and to confirm notice of receipt of such notice, in accordance with applicable State law. The individual signs and dates such notice confirming receipt of the notice before such item or service is furnished. 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 independent freestanding emergency department means a health care facility that— is geographically separate and distinct and licensed separately from a hospital under applicable State law; and provides emergency services. Subject to subparagraph (B), the term median contracted rate means, with respect to a health plan— for an item or service furnished during 2022, the median of the contracted 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 specified in subparagraph (C)) as the plan involved) as the total maximum payment under such plans in 2019 for the same or a similar item or service that is provided by a provider or facility in the same or similar specialty and provided in the geographic region (established (and updated, as appropriate) by the Secretary, in consultation with the National Association of Insurance Commissioners) in which the item or service is furnished, consistent with the methodology established by the Secretary under subsection (b)(2)(B), increased by the percentage increase in the consumer price index for all urban consumers (United States city average) over 2019, 2020, and 2021; for an item or service furnished during 2023 or a subsequent year through 2026, the median contracted rate 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; for an item or service furnished during a rebasing year (as defined in subparagraph (D)), the median of the contracted 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 specified in subparagraph (C)) as the plan involved) as the total maximum payment under such plans in such year for the same or a similar item or service that is provided by a provider or facility in the same or similar specialty and provided in the geographic region (as established pursuant to clause (i)) in which the item or service is furnished, consistent with the methodology established by the Secretary under subsection (b)(2)(B); and for an item or service furnished during any of the 4 years following a rebasing year, the median contracted rate 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. In the case the sponsor or issuer of a health plan has insufficient information (as specified by the Secretary) to calculate the median of the contracted rates in accordance with subparagraph

(A)for a year for an item or service furnished in a particular geographic region (as established pursuant to subparagraph (A)(i)) by a type of provider or facility, the substitute rate (as defined in clause (ii)) for such item or service shall be deemed to be the median contracted rate for such item or service furnished in such region during such year by such a provider or facility for such year under such subparagraph

(A)for such plan. For purposes of clause (i), the term substitute rate means, with respect to an item or service furnished by a provider or facility in a geographic region (established pursuant to subparagraph (A)(i)) during a year for which a health plan is required to make payment pursuant to subsection (b)(1), (e)(1), or (i)(1)— if sufficient information (as specified by the Secretary) exists to determine the median of the contracted rates recognized by all health plans offered in the same line of business (as specified in subparagraph (C)) by any group health plan or health insurance issuer for such an item or service furnished in such region by such a provider or facility during such year using a database or other source of information determined appropriate by the Secretary, such median; and if such sufficient information does not exist, the median of the contracted rates recognized by all health plans offered in the same line of business (as specified in subparagraph (C)) by any group health plan or health insurance issuer for such an item or service furnished in a similarly situated geographic region (as determined by the Secretary) with such sufficient information by such a provider or facility during such year using such a database or such other source of information. The Secretary shall develop a methodology for determining a substitute rate based on a similarly situated health plan that is not a Federal health care program (as defined in section 1128B(f) of the Social Security Act) in the case a substitute rate is not calculable under the previous sentence with respect to an item or service. A line of business specified in this subparagraph is one of the following: The individual market. The small group market. The large group market. In the case of a self-insured group health plan, other self-insured group health plans. For purposes of subparagraph (A), the term rebasing year means 2027 and every 5 years thereafter. The term nonparticipating facility means, with respect to an item or service and a health plan, a health care facility described in subparagraph (B)(ii) that does not have a contractual relationship with the plan for furnishing such item or service. The term participating 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 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), including an emergency department of a hospital. A critical access hospital (as defined in section 1861(mm)(1) of such Act). An ambulatory surgical center (as described in section 1833(i)(1)(A) of such Act). A laboratory. A radiology facility or imaging center. An independent freestanding emergency department. Any other facility specified by the Secretary. The term nonparticipating provider means, with respect to an item or service and a health plan, a physician or other health care provider who does not have a contractual relationship with 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 has a contractual relationship with the plan for furnishing such item or service under the plan. The term out-of-network rate means, with respect to an item or service furnished in a State during a year to a participant, beneficiary, or enrollee of a health plan receiving such item or service from a nonparticipating provider or facility— subject to subparagraphs

(C)and (D), in the case such State has in effect a State law that provides for a method for determining the total amount payable under such health plan regulated by such State with respect to such item or service furnished by such provider or facility, such amount determined in accordance with such law; subject to subparagraphs

(C)and (D), in the case such State does not have in effect such a law with respect to such item or service, plan, and provider or facility— subject to clause (ii), if the provider or facility (as applicable) and such plan agree on an amount of payment (including if agreed on through open negotiations under subsection (j)(1)) with respect to such item or service, such agreed on amount; or if such provider or facility (as applicable) and such plan enter the mediated dispute process under subsection

(j)and do not so agree before the date on which a selected independent entity (as defined in paragraph

(3)of such subsection) makes a determination with respect to such item or service under such subsection, the amount of such determination; in the case such State has an All-Payer Model Agreement under section 1115A of the Social Security Act, the amount that the State approves under such system for such item or service so furnished; or in the case such health plan is a self-insured group health plan and in the case of a State with an agreement with such plan in effect as of the date of the enactment of the Consumer Protections Against Surprise Medical Bills Act of 2020, that provides for a method for determining the total amount payable under such health plan with respect to such item or service furnished by such provider or facility, such amount determined in accordance with such method. The term recognized amount means, with respect to an item or service furnished in a State during a year to a participant, beneficiary, or enrollee of a health plan by a nonparticipating provider or nonparticipating facility— subject to subparagraphs

(C)and (D), in the case such State has in effect a law described in paragraph (11)(A) with respect to such item or service, provider or facility, and plan, the amount determined in accordance with such law; subject to subparagraphs

(C)and (D), in the case such State does not have in effect such a law, an amount that is the median contracted rate for such item or service for such year; subject to subparagraph (D), in the case such State is described in paragraph (11)(C) with respect to such item or service so furnished, the amount that the State approves under such system for such item or service so furnished; or in the case such health plan is a self-insured group health plan and in the case of a State with an agreement with such plan in effect as of the date of the enactment of the Consumer Protections Against Surprise Medical Bills Act of 2020, that provides for a method for determining the total amount payable under such health plan with respect to such item or service furnished by such provider or facility, such amount determined in accordance with such method. The term to stabilize , with respect to an emergency medical condition, has the meaning give in section 1867(e)(3)(A) of the Social Security Act). The term cost-sharing includes copayments, coinsurance, and deductibles. In the case of any payment required to be made by a health plan pursuant to subsection (b)(1), (e)(1), or (i)(1) to a nonparticiapting provider or nonparticipating facility for an item or service, such payment shall be made to such provider or facility and not to the individual receiving such item or service. . The amendments made by paragraph

(1)shall apply with respect to plan years beginning on or after January 1, 2022. Subchapter B of chapter 100 of the Internal Revenue Code of 1986 is amended by adding at the end the following new section: If a health plan requires or provides for designation by a participant or beneficiary of a participating primary care provider, then the plan shall permit each participant or beneficiary to designate any participating primary care provider who is available to accept such individual. If a health plan provides or covers any benefits with respect to services in an emergency department of a hospital and, for plan year 2022 or a subsequent plan year, with respect to emergency services in an independent freestanding emergency department, the plan shall cover emergency services— without the need for any prior authorization determination; whether the health care provider furnishing such services is a participating provider or a participating facility that is an emergency department of a hospital or an independent freestanding emergency department (in this subsection referred to as a participating emergency facility ) with respect to such services; in a manner so that, if such services are provided to a participant or beneficiary by a nonparticipating provider or a nonparticipating facility that is an emergency department of a hospital or an independent freestanding emergency department— such services will be provided without imposing any requirement under the plan for prior authorization of services or any limitation on coverage that is more restrictive than the requirements or limitations that apply to emergency services received from participating providers and participating emergency facilities with respect to such plan; the cost-sharing requirement is not greater than the requirement that would apply if such services were furnished by a participating provider or a participating emergency facility, as applicable; such cost-sharing requirement is calculated as if the contracted rate for such services if furnished by a participating provider or a participating emergency facility were equal to the recognized amount for such services; the health plan pays to such provider or facility, respectively, the amount by which the out-of-network rate for such services exceeds the cost-sharing amount for such services (as determined in accordance with clauses

(ii)and (iii)); and any deductible or out-of-pocket maximum that would apply if such services were furnished by a participating provider or a participating emergency facility shall be the deductible or out-of-pocket maximum that applies; and without regard to any other term or condition of such coverage (other than exclusion or coordination of benefits, or an affiliation or waiting period, permitted under section 2704 of the Public Health Service Act, including as incorporated pursuant to section 715 of the Employee Retirement Income Security Act of 1974 and section 9815, and other than applicable cost-sharing). Not later than July 1, 2021, the Secretary, in coordination with the Secretary of Health and Human Services and the Secretary of Labor and in consultation with the National Association of Insurance Commissioners, shall establish through rulemaking a process, in accordance with clause (ii), under which health plans are audited by the Secretary 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 subsection (k)(8) with respect to the year involved. Under the process established pursuant to clause (i), the Secretary— shall conduct audits described in such clause of a sample of 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 the requirement described in such clause. Not later than July 1, 2021, the Secretary, in coordination with the Secretary of Labor and the Secretary of Health and Human Services, shall establish through rulemaking— the methodology the sponsor of a health plan shall use to determine the median contracted rate, which shall account for relevant payment adjustments that take into account facility type that are otherwise taken into account for purposes of determining payment amounts with respect to participating facilities; and the information such sponsor shall share with the nonparticipating provider involved when making such a determination. In the case of a person who has a child who is a participant or beneficiary under a health plan, if the plan requires or provides for the designation of a participating primary care provider for the child, the plan shall permit such person to designate a physician (allopathic or osteopathic) who specializes in pediatrics as the child’s primary care provider if such provider participates in the network of the plan. Nothing in paragraph

(1)shall be construed to waive any exclusions of coverage under the terms and conditions of the plan with respect to coverage of pediatric care. A health plan described in paragraph

(2)may not require authorization or referral by the plan or any person (including a primary care provider described in paragraph (2)(B)) in the case of a female participant or beneficiary who seeks coverage for obstetrical or gynecological care provided by a participating health care professional who specializes in obstetrics or gynecology. Such professional shall agree to otherwise adhere to such plan’s policies and procedures, including procedures regarding referrals and obtaining prior authorization and providing services pursuant to a treatment plan (if any) approved by the plan. A health plan described in paragraph

(2)shall treat the provision of obstetrical and gynecological care, and the ordering of related obstetrical and gynecological items and services, pursuant to the direct access described under subparagraph (A), by a participating health care professional who specializes in obstetrics or gynecology as the authorization of the primary care provider. A health plan described in this paragraph is a health plan that— provides coverage for obstetric or gynecologic care; and requires the designation by a participant or beneficiary of a participating primary care provider. Nothing in paragraph

(1)shall be construed to— waive any exclusions of coverage under the terms and conditions of the plan with respect to coverage of obstetrical or gynecological care; or preclude the health plan involved from requiring that the obstetrical or gynecological provider notify the primary care health care professional or the plan of treatment decisions. For purposes of this section: The term contracted rate means, with respect to a health plan and a health care provider or health care facility furnishing an item or service to a beneficiary or participant of such plan, the agreed upon total payment amount (inclusive of any cost-sharing) to such provider or facility for such item or service. The term during a visit shall, with respect to an individual who is furnished items and services at a participating facility, include equipment and devices, telemedicine services, imaging services, laboratory services, preoperative and postoperative services, and such other items and services as the Secretary may specify furnished to such individual, regardless of whether or not the provider furnishing such items or services is at the facility. The term emergency department of a hospital includes a hospital outpatient department that provides emergency services. The term emergency medical condition means a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent layperson, who possesses an average knowledge of health and medicine, could reasonably expect the absence of immediate medical attention to result in a condition described in clause (i), (ii), or

(iii)of section 1867(e)(1)(A) of the Social Security Act. 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 (regardless of the department of the hospital in which such further examination or treatment is furnished). In the case of an individual enrolled in a health plan who is furnished services described in subparagraph

(A)by a provider or hospital or independent freestanding emergency department to stabilize such individual with respect to an emergency medical condition, the term emergency services shall include, in addition to those described in subparagraph (A), items and services furnished as part of outpatient observation or an inpatient or outpatient stay during a visit in which such individual is so stabilized with respect to such emergency condition if— such items and services would otherwise be covered under such plan if furnished by a participating provider or participating facility; and such items and services are furnished— to maintain, improve, or resolve the individual’s stabilization with respect to such condition, unless any circumstance described in subparagraph

(C)has occurred with respect to such individual before such items and services are furnished; or for any purpose not described in subclause (I), unless each of the criteria described in subparagraph

(D)have been met with respect to such individual and such item or service. For purposes of subparagraph (B)(ii)(I), a circumstance described in this subparagraph is any of the following, with respect to an individual who is a beneficiary, participant, or enrollee of a health plan who is furnished services described in subparagraph

(A)by a hospital or independent freestanding emergency department with respect to an emergency medical condition: A participating provider, with respect to such plan, with privileges at the hospital or independent freestanding emergency department assumes responsibility for the care of the individual. A participating provider, with respect to such plan, assumes responsibility for the care of the individual through transfer of the individual. The health plan and the provider treating such individual at the hospital or independent freestanding emergency department for such condition reach an agreement concerning the care for the individual. The individual is discharged. For purposes of subparagraph (B)(ii)(II), the criteria described in this subparagraph, with respect to an individual and an item or service furnished by a nonparticipating provider or nonparticipating facility that is a hospital or an independent freestanding emergency department, are the following: A written notice (as specified by the Secretary and in a clear and understandable manner) is provided by such provider or facility to such individual, before such item or service is furnished, that includes the following information: That such provider or facility is a nonparticipating provider or nonparticipating facility (as applicable). To the extent practicable, the estimated amount that such nonparticipating facility or nonparticipating provider may charge the individual for such item or service. A statement that the individual may seek such item or service from a provider that is a participating provider or a hospital or independent freestanding emergency department that is a participating facility and a list, if feasible, of participating facilities or participating providers, as applicable, who are able to furnish such item or service. Such individual is in a condition to receive (as determined in accordance with guidance issued by the Secretary) the information described in clause

(i)and to confirm notice of receipt of such notice, in accordance with applicable State law. The individual signs and dates such notice confirming receipt of the notice before such item or service is furnished. The term health plan means a group health plan, including any group health plan that is a grandfathered health plan (as defined in section 1251(e) of the Patient Protection and Affordable Care Act). The term independent freestanding emergency department means a health care facility that— is geographically separate and distinct and licensed separately from a hospital under applicable State law; and provides emergency services. Subject to subparagraph (B), the term median contracted rate means, with respect to a health plan— for an item or service furnished during 2022, the median of the contracted rates recognized by the sponsor of such plan (determined with respect to all such plans of such sponsor that are within the same line of business (as specified in subparagraph (C)) as the plan involved) as the total maximum payment under such plans in 2019 for the same or a similar item or service that is provided by a provider or facility in the same or similar specialty and provided in the geographic region (established (and updated, as appropriate) by the Secretary, in consultation with the National Association of Insurance Commissioners) in which the item or service is furnished, consistent with the methodology established by the Secretary under subsection (b)(2)(B), increased by the percentage increase in the consumer price index for all urban consumers (United States city average) over 2019, 2020, and 2021; for an item or service furnished during 2023 or a subsequent year through 2026, the median contracted rate 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; for an item or service furnished during a rebasing year (as defined in subparagraph (D)), the median of the contracted rates recognized by the sponsor of such plan (determined with respect to all such plans of such sponsor that are within the same line of business (as specified in subparagraph (C)) as the plan involved) as the total maximum payment under such plans in such year for the same or a similar item or service that is provided by a provider or facility in the same or similar specialty and provided in the geographic region (as established pursuant to clause (i)) in which the item or service is furnished, consistent with the methodology established by the Secretary under subsection (b)(2)(B); and for an item or service furnished during any of the 4 years following a rebasing year, the median contracted rate 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. In the case the sponsor of a health plan has insufficient information (as specified by the Secretary) to calculate the median of the contracted rates in accordance with subparagraph

(A)for a year for an item or service furnished in a particular geographic region (as established pursuant to subparagraph (A)(i)) by a type of provider or facility, the substitute rate (as defined in clause (ii)) for such item or service shall be deemed to be the median contracted rate for such item or service furnished in such region during such year by such a provider or facility for such year under such subparagraph

(A)for such plan. For purposes of clause (i), the term substitute rate means, with respect to an item or service furnished by a provider or facility in a geographic region (established pursuant to subparagraph (A)(i)) during a year for which a health plan is required to make payment pursuant to subsection (b)(1), (e)(1), or (i)(1)— if sufficient information (as specified by the Secretary) exists to determine the median of the contracted rates recognized by all health plans offered in the same line of business (as specified in subparagraph (C)) by any group health plan for such an item or service furnished in such region by such a provider or facility during such year using a database or other source of information determined appropriate by the Secretary, such median; and if such sufficient information does not exist, the median of the contracted rates recognized by all health plans offered in the same line of business (as specified in subparagraph (C)) by any group health plan for such an item or service furnished in a similarly situated geographic region (as determined by the Secretary) with such sufficient information by such a provider or facility during such year using such a database or such other source of information. The Secretary shall develop a methodology for determining a substitute rate based on a similarly situated health plan that is not a Federal health care program (as defined in section 1128B(f) of the Social Security Act) in the case a substitute rate is not calculable under the previous sentence with respect to an item or service. A line of business specified in this subparagraph is one of the following: The small group market. The large group market. In the case of a self-insured group health plan, other self-insured group health plans. For purposes of subparagraph (A), the term rebasing year means 2027 and every 5 years thereafter. The term nonparticipating facility means, with respect to an item or service and a health plan, a health care facility described in subparagraph (B)(ii) that does not have a contractual relationship with the plan for furnishing such item or service. The term participating 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 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), including an emergency department of a hospital. A critical access hospital (as defined in section 1861(mm)(1) of such Act). An ambulatory surgical center (as described in section 1833(i)(1)(A) of such Act). A laboratory. A radiology facility or imaging center. An independent freestanding emergency department. Any other facility specified by the Secretary. The term nonparticipating provider means, with respect to an item or service and a health plan, a physician or other health care provider who does not have a contractual relationship with 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 has a contractual relationship with the plan for furnishing such item or service under the plan. The term out-of-network rate means, with respect to an item or service furnished in a State during a year to a participant or beneficiary of a health plan receiving such item or service from a nonparticipating provider or facility— subject to subparagraphs

(C)and (D), in the case such State has in effect a State law that provides for a method for determining the total amount payable under such health plan regulated by such State with respect to such item or service furnished by such provider or facility, such amount determined in accordance with such law; subject to subparagraphs

(C)and (D), in the case such State does not have in effect such a law with respect to such item or service, plan, and provider or facility— subject to clause (ii), if the provider or facility (as applicable) and such plan agree on an amount of payment (including if agreed on through open negotiations under subsection (j)(1)) with respect to such item or service, such agreed on amount; or if such provider or facility (as applicable) and such plan enter the mediated dispute process under subsection

(j)and do not so agree before the date on which a selected independent entity (as defined in paragraph

(3)of such subsection) makes a determination with respect to such item or service under such subsection, the amount of such determination; in the case such State has an All-Payer Model Agreement under section 1115A of the Social Security Act, the amount that the State approves under such system for such item or service so furnished; or in the case such health plan is a self-insured group health plan and in the case of a State with an agreement with such plan in effect as of the date of the enactment of the Consumer Protections Against Surprise Medical Bills Act of 2020, that provides for a method for determining the total amount payable under such health plan with respect to such item or service furnished by such provider or facility, such amount determined in accordance with such method. The term recognized amount means, with respect to an item or service furnished in a State during a year to a participant or beneficiary of a health plan by a nonparticipating provider or nonparticipating facility— subject to subparagraphs

(C)and (D), in the case such State has in effect a law described in paragraph (11)(A) with respect to such item or service, provider or facility, and plan, the amount determined in accordance with such law; subject to subparagraphs

(C)and (D), in the case such State does not have in effect such a law, an amount that is the median contracted rate for such item or service for such year; in the case such State is described in paragraph (11)(C) with respect to such item or service so furnished, the amount that the State approves under such system for such item or service so furnished; or in the case such health plan is a self-insured group health plan and in the case of a State with an agreement with such plan in effect as of the date of the enactment of the Consumer Protections Against Surprise Medical Bills Act of 2020, that provides for a method for determining the total amount payable under such health plan with respect to such item or service furnished by such provider or facility, such amount determined in accordance with such method. The term to stabilize , with respect to an emergency medical condition, has the meaning give in section 1867(e)(3)(A) of the Social Security Act. The term cost-sharing includes copayments, coinsurance, and deductibles. In the case of any payment required to be made by a health plan pursuant to subsection (b)(1), (e)(1), or (i)(1) to a nonparticiapting provider or nonparticipating facility for an item or service, such payment shall be made to such provider or facility and not to the individual receiving such item or service. . Section 9815(a) of the Internal Revenue Code of 1986 is amended— in paragraph (1), by striking (as amended by the Patient Protection and Affordable Care Act) and inserting (other than, with respect to a plan year beginning on or after January 1, 2022, the provisions of section 2719A of such Act) ; and in paragraph (2), by inserting (other than, with respect to a plan year beginning on or after January 1, 2022, the provisions of section 2719A of such Act) after the first occurrence of such part A . Section 9831(a) of the Internal Revenue Code of 1986 is amended by inserting (other than, with respect to a group health plan described in paragraph (2), the requirements of section 9816) before shall not apply . The table of sections for such subchapter is amended by adding at the end the following new items: Sec. 9815. Additional market reforms. Sec. 9816. Patient protections. . The amendments made by this subsection shall apply with respect to plan years beginning on or after January 1, 2022. Subpart B of part 7 of subtitle B of title I of the Employee Retirement Income Security Act of 1974 ( 29 U.S.C. 1185 et seq.) is amended by adding at the end the following new section: If a health plan requires or provides for designation by a participant or beneficiary of a participating primary care provider, then the plan shall permit each participant or beneficiary to designate any participating primary care provider who is available to accept such individual. If a health plan provides or covers any benefits with respect to services in an emergency department of a hospital and, for plan year 2022 or a subsequent plan year, with respect to emergency services in an independent freestanding emergency department, the plan shall cover emergency services— without the need for any prior authorization determination; whether the health care provider furnishing such services is a participating provider or a participating facility that is an emergency department of a hospital or an independent freestanding emergency department (in this subsection referred to as a participating emergency facility ) with respect to such services; in a manner so that, if such services are provided to a participant or beneficiary by a nonparticipating provider or a nonparticipating facility that is an emergency department of a hospital or an independent freestanding emergency department— such services will be provided without imposing any requirement under the plan for prior authorization of services or any limitation on coverage that is more restrictive than the requirements or limitations that apply to emergency services received from participating providers and participating emergency facilities with respect to such plan; the cost-sharing requirement is not greater than the requirement that would apply if such services were furnished by a participating provider or a participating emergency facility, as applicable; such cost-sharing requirement is calculated as if the contracted rate for such services if furnished by a participating provider or a participating emergency facility were equal to the recognized amount for such services; the health plan pays to such provider or facility, respectively, the amount by which the out-of-network rate for such services exceeds the cost-sharing amount for such services (as determined in accordance with clauses

(ii)and (iii)); and any deductible or out-of-pocket maximum that would apply if such services were furnished by a participating provider or a participating emergency facility shall be the deductible or out-of-pocket maximum that applies; and without regard to any other term or condition of such coverage (other than exclusion or coordination of benefits, or an affiliation or waiting period, permitted under section 2704 of the Public Health Service Act, including as incorporated pursuant to section 715 and section 9815 of the Internal Revenue Code of 1986, and other than applicable cost-sharing). Not later than July 1, 2021, the Secretary, in coordination with the Secretary of Health and Human Services and the Secretary of the Treasury and in consultation with the National Association of Insurance Commissioners, shall establish through rulemaking a process, in accordance with clause (ii), under which health plans are audited by the Secretary 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 subsection (k)(8) with respect to the year involved. Under the process established pursuant to clause (i), the Secretary— shall conduct audits described in such clause of a sample of 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 the requirement described in such clause. Not later than July 1, 2021, the Secretary, in coordination with the Secretary of the Treasury and the Secretary of Health and Human Services, shall establish through rulemaking— the methodology the sponsor or issuer of a health plan shall use to determine the median contracted rate, which shall account for relevant payment adjustments that take into account facility type that are otherwise taken into account for purposes of determining payment amounts with respect to participating facilities; and the information such sponsor or issuer shall share with the nonparticipating provider involved when making such a determination. In the case of a person who has a child who is a participant or beneficiary under a health plan, if the plan requires or provides for the designation of a participating primary care provider for the child, the plan shall permit such person to designate a physician (allopathic or osteopathic) who specializes in pediatrics as the child’s primary care provider if such provider participates in the network of the plan. Nothing in paragraph