II 116TH CONGRESS 1ST SESSION S. 1266 To amend the Employee Retirement Income Security Act of 1974 to protect patients from surprise medical bills. IN THE SENATE OF THE UNITED STATES MAY 1, 2019 Mr. SCOTT of Florida introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions A BILL To amend the Employee Retirement Income Security Act of 1974 to protect patients from surprise medical bills. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Protecting Patients 4 from Surprise Medical Bills Act’’. 5 SEC. 2. PROHIBITION ON SURPRISE MEDICAL BILLING. 6 Subpart B of part 7 of title I of the Employee Retire- 7 ment Income Security Act of 1974 (29 U.S.C. 1185 et 8 seq.) is amended by adding at the end the following: 9 VerDate Sep 11 2014 21:19 May 07, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1266.IS S1266 pbinns on DSK79D2C42PROD with BILLS 2 •S 1266 IS ‘‘SEC. 716. PROHIBITION ON SURPRISE MEDICAL BILLING. 1 ‘‘(a) DEFINITIONS.—In this section: 2 ‘‘(1) BALANCE BILL.—The term ‘balance bill’ 3 means the collection or attempted collection from a 4 participant or beneficiary of any amount in excess of 5 the applicable copayments, coinsurance, or deduct- 6 ible for services covered under the participant or 7 beneficiary’s group health plan. 8 ‘‘(2) EMERGENCY MEDICAL CONDITION.—The 9 term ‘emergency medical condition’ means the condi- 10 tion described in section 2719A(b)(2)(A) of the Pub- 11 lic Health Service Act. 12 ‘‘(3) EMERGENCY SERVICES.—The term ‘emer- 13 gency services’ means the services described in sec- 14 tion 2719A(b)(2)(B) of the Public Health Service 15 Act. 16 ‘‘(4) EMERGENCY SERVICES PROVIDER.—The 17 term ‘emergency services provider’ means a facility 18 or facility-based provider that bills a participant or 19 beneficiary for emergency services. 20 ‘‘(5) FACILITY.—The term ‘facility’ means an 21 entity providing health care services, as licensed or 22 authorized by a State. 23 ‘‘(6) FACILITY-BASED PROVIDER.—The term 24 ‘facility-based provider’ means a physician, health 25 care professional, or entity that has entered into an 26 VerDate Sep 11 2014 21:19 May 07, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1266.IS S1266 pbinns on DSK79D2C42PROD with BILLS 3 •S 1266 IS agreement with a facility to provide health care serv- 1 ices to patients of that facility. 2 ‘‘(b) EMERGENCY SERVICES.— 3 ‘‘(1) PROHIBITION ON BALANCE BILLING.—A 4 self-insured group health plan shall be solely liable 5 for making payments to an emergency services pro- 6 vider for emergency services covered under the plan 7 that are provided to a participant or beneficiary, and 8 such participant or beneficiary shall not be liable to 9 the emergency services provider for any amount for 10 such services other than the applicable copayment, 11 coinsurance, or deductible amount required under 12 the plan for covered emergency services. Emergency 13 service providers shall not balance bill a participant 14 or beneficiary under a self-insured group health plan 15 for any covered emergency services provided to such 16 participant or beneficiary. 17 ‘‘(2) COST SHARING LIMITATION AND PRIOR 18 AUTHORIZATION.—If a self-insured group health 19 plan provides coverage for any benefits with respect 20 to emergency services, such coverage shall be in ac- 21 cordance with the provisions of section 2719A(b) of 22 the Public Health Service Act and— 23 ‘‘(A) if such services are provided by an 24 out-of-network provider, the cost-sharing re- 25 VerDate Sep 11 2014 21:19 May 07, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1266.IS S1266 pbinns on DSK79D2C42PROD with BILLS 4 •S 1266 IS quirements (including any deductible amount 1 and the out-of-pocket limit) applicable to such 2 services shall be the same as the cost-sharing 3 requirement that would apply if such services 4 were provided by an in-network provider; 5 ‘‘(B) prior authorization shall not be re- 6 quired for pre-hospital transport or treatment; 7 and 8 ‘‘(C) payment by the plan shall be made 9 directly to the emergency services provider. 10 ‘‘(c) COVERED NON-EMERGENCY SERVICES.—Facil- 11 ity-based providers shall not balance bill a patient for cov- 12 ered non-emergency services if the services are provided 13 at an in-network facility and the participant or beneficiary 14 did not have the ability or opportunity to select to receive 15 such services from an in-network provider. 16 ‘‘(d) REIMBURSEMENTS FOR OUT-OF-NETWORK 17 PAYMENTS.—A self-insured group health plan shall reim- 18 burse a health care provider for out-of-network emergency 19 and non-emergency services described in subsections (b) 20 and (c) based on one of the following payment methodolo- 21 gies: 22 ‘‘(1) The amount of the claim made by the pro- 23 vider for such services. 24 VerDate Sep 11 2014 21:19 May 07, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1266.IS S1266 pbinns on DSK79D2C42PROD with BILLS 5 •S 1266 IS ‘‘(2) The usual and customary amount charged 1 by the provider for similar services in the community 2 where the services were provided. 3 ‘‘(3) The amount mutually agreed to by the 4 plan and the provider during the 60-day period after 5 the date on which the claim is submitted. 6 ‘‘(e) VOLUNTARY BINDING ARBITRATION.— 7 ‘‘(1) IN GENERAL.—If a self-insured group 8 health plan and health care provider are unable to 9 resolve a dispute with respect to billing for services 10 described in subsection (b) or (c), such provider may 11 voluntarily initiate binding arbitration with such 12 plan under this subsection. The Secretary shall es- 13 tablish by rule methods of aggregation for claim dis- 14 putes submitted to voluntary binding arbitration 15 under this subsection. 16 ‘‘(2) ARBITRATION ORGANIZATIONS.— 17 ‘‘(A) IN GENERAL.—The Secretary shall 18 enter into contracts with outside organizations 19 to conduct timely, voluntary binding arbitration 20 proceedings under this subsection. To be eligi- 21 ble for such a contract, an organization shall 22 have at least 5 years of experience serving as a 23 neutral party in complex dispute resolution pro- 24 ceedings. 25 VerDate Sep 11 2014 21:19 May 07, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1266.IS S1266 pbinns on DSK79D2C42PROD with BILLS 6 •S 1266 IS ‘‘(B) LIMITATION.—An organization shall 1 not be eligible to enter into a contract under 2 subparagraph (A) if the organization has been 3 employed by, consulted for, or otherwise had a 4 business relationship (other than the receipt of 5 arbitration fees) with a health plan, health in- 6 surance issuer, facility, or health care profes- 7 sional during the 3-year period immediately 8 preceding the effective date of the contract with 9 the Secretary or during the term of such con- 10 tract. 11 ‘‘(C) ARBITRATOR.—An arbitrator may 12 not be assigned by an organization to resolve a 13 dispute under this paragraph if the arbitrator 14 has been employed by, consulted for, or other- 15 wise had a business relationship (other than the 16 receipt of arbitration fees) with a health plan, 17 health insurance issuer, facility, or health care 18 professional during the 3-year period imme- 19 diately preceding the request for arbitration. 20 ‘‘(3) ELIGIBILITY.—To be eligible for voluntary 21 binding arbitration under this subsection the claim 22 involved shall— 23 VerDate Sep 11 2014 21:19 May 07, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1266.IS S1266 pbinns on DSK79D2C42PROD with BILLS 7 •S 1266 IS ‘‘(A) in the case of a claim relating to fa- 1 cility health care services, be not less than 2 $3,000; and 3 ‘‘(B) in the case of a claim relating to pro- 4 fessional services, be not less than $500. 5 Such amounts shall be adjusted by the Secretary 6 each year by the percentage increase in the con- 7 sumer price index. 8 ‘‘(4) PROCEDURES.—The following procedures 9 shall apply during a voluntary arbitration proceeding 10 under this subsection: 11 ‘‘(A) The plan or provider involved may 12 make an offer to settle the disputed claim. The 13 party to whom such an offer is directed shall 14 respond to such offer within 15 days after re- 15 ceipt of the offer. 16 ‘‘(B) If the party receiving an offer to set- 17 tle under paragraph (A) does not accept such 18 offer, and the arbitrator issues a final order 19 with respect to the disputed claim that is more 20 than 90 percent or less than 110 percent of the 21 offer amount, the party receiving the offer is 22 deemed a non-prevailing party for purpose of 23 paragraph (5). 24 VerDate Sep 11 2014 21:19 May 07, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1266.IS S1266 pbinns on DSK79D2C42PROD with BILLS 8 •S 1266 IS ‘‘(C) A final order under this paragraph is 1 subject to judicial review under this Act. 2 ‘‘(D) All parties to a dispute that is sub- 3 ject to arbitration under this subsection may 4 agree to settle claim at any time, for any 5 amount, regardless of whether an offer to settle 6 was made or rejected. 7 ‘‘(5) REVIEW COSTS.— 8 ‘‘(A) IN GENERAL.—The entity that does 9 not prevail under an arbitrator’s final order 10 under voluntary binding arbitration under this 11 subsection shall pay the review costs. 12 ‘‘(B) APPORTIONMENT OF COSTS.—In the 13 case that both parties to voluntary binding arbi- 14 tration under this subsection prevail in part, 15 the review costs shall be apportioned among the 16 parties in proportion to the final judgment. The 17 apportionment shall be based on the disputed 18 claim amount. 19 ‘‘(C) FAILURE TO PAY.—If a party to vol- 20 untary binding arbitration under this subsection 21 fails to pay any amount of the ordered review 22 costs within 35 days after the arbitrator’s final 23 order, the party shall be subject to a penalty of 24 VerDate Sep 11 2014 21:19 May 07, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1266.IS S1266 pbinns on DSK79D2C42PROD with BILLS 9 •S 1266 IS $500 for each day that such amount is not 1 paid. 2 ‘‘(f) NETWORK TRANSPARENCY.—A self-insured 3 group health plan shall— 4 ‘‘(1) not later than 1 year after the date of en- 5 actment of this section, publish on their Internet 6 website a list of network providers, and update such 7 list on a monthly basis; and 8 ‘‘(2) not later than 1 year after the date of en- 9 actment of this section, and annually thereafter, pro- 10 vide an annual notification to participants and bene- 11 ficiaries concerning the potential for balance billing 12 when using out-of-network providers.’’. 13 Æ VerDate Sep 11 2014 21:19 May 07, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6301 E:\BILLS\S1266.IS S1266 pbinns on DSK79D2C42PROD with BILLS