No Surprises Act

I 116TH CONGRESS 1ST SESSION H. R. 3630 To amend title XXVII of the Public Health Service Act to protect health care consumers from surprise billing practices, and for other purposes. IN THE HOUSE OF REPRESENTATIVES JULY 9, 2019 Mr. PALLONE (for himself and Mr. WALDEN) introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committee on Education and Labor, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee con- cerned A BILL To amend title XXVII of the Public Health Service Act to protect health care consumers from surprise billing practices, and for other purposes. 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 ‘‘No Surprises Act’’. 4 SEC. 2. PREVENTING SURPRISE MEDICAL BILLS. 5 (a) COVERAGE OF EMERGENCY SERVICES.—Section 6 2719A(b) of the Public Health Service Act (42 U.S.C. 7 300gg–19a(b)) is amended— 8 VerDate Sep 11 2014 18:15 Jul 15, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3630.IH H3630 pamtmann on DSKBFK8HB2PROD with BILLS 2 •HR 3630 IH (1) in paragraph (1)— 1 (A) in the matter preceding subparagraph 2 (A)— 3 (i) by striking ‘‘a group health plan, 4 or a health insurance issuer offering group 5 or individual health insurance issuer,’’ and 6 inserting ‘‘a health plan (as defined in sub- 7 section (e)(2)(A))’’; 8 (ii) by inserting ‘‘or, for plan year 9 2021 or a subsequent plan year, with re- 10 spect to emergency services in an inde- 11 pendent freestanding emergency depart- 12 ment (as defined in paragraph (3)(D))’’ 13 after ‘‘emergency department of a hos- 14 pital’’; 15 (iii) by striking ‘‘the plan or issuer’’ 16 and inserting ‘‘the plan’’; and 17 (iv) by striking ‘‘paragraph (2)(B)’’ 18 and inserting ‘‘paragraph (3)(C)’’; 19 (B) in subparagraph (B), by inserting ‘‘or 20 a participating emergency facility, as applica- 21 ble,’’ after ‘‘participating provider’’; and 22 (C) in subparagraph (C)— 23 (i) in the matter preceding clause (i), 24 by inserting ‘‘by a nonparticipating pro- 25 VerDate Sep 11 2014 18:15 Jul 15, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3630.IH H3630 pamtmann on DSKBFK8HB2PROD with BILLS 3 •HR 3630 IH vider or a nonparticipating emergency fa- 1 cility’’ after ‘‘enrollee’’; 2 (ii) by striking clause (i); 3 (iii) by striking ‘‘(ii)(I) such services’’ 4 and inserting ‘‘(i) such services’’; 5 (iv) by striking ‘‘where the provider of 6 services does not have a contractual rela- 7 tionship with the plan for the providing of 8 services’’; 9 (v) by striking ‘‘emergency depart- 10 ment services received from providers who 11 do have such a contractual relationship 12 with the plan; and’’ and inserting ‘‘emer- 13 gency services received from participating 14 providers and participating emergency fa- 15 cilities with respect to such plan;’’; 16 (vi) by striking ‘‘(II) if such services’’ 17 and all that follows through ‘‘were pro- 18 vided in-network’’ and inserting the fol- 19 lowing: 20 ‘‘(ii) the cost-sharing requirement (ex- 21 pressed as a copayment amount or coinsur- 22 ance rate) is not greater than the require- 23 ment that would apply if such services 24 VerDate Sep 11 2014 18:15 Jul 15, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3630.IH H3630 pamtmann on DSKBFK8HB2PROD with BILLS 4 •HR 3630 IH were provided by a participating provider 1 or a participating emergency facility;’’; and 2 (vii) by adding at the end the fol- 3 lowing new clauses: 4 ‘‘(iii) such requirement is calculated 5 as if the total amount that would have 6 been charged for such services by such 7 participating provider or participating 8 emergency facility were equal to— 9 ‘‘(I) in the case of such services 10 furnished in a State described in 11 paragraph (3)(H)(ii), the median con- 12 tracted rate (as defined in paragraph 13 (3)(E)(i)) for such services; and 14 ‘‘(II) in the case of such services 15 furnished in a State described in 16 paragraph (3)(H)(i), the lesser of— 17 ‘‘(aa) the amount deter- 18 mined by such State for such 19 services in accordance with the 20 method described in such para- 21 graph; and 22 ‘‘(bb) the median contracted 23 rate (as so defined) for such 24 services; 25 VerDate Sep 11 2014 18:15 Jul 15, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3630.IH H3630 pamtmann on DSKBFK8HB2PROD with BILLS 5 •HR 3630 IH ‘‘(iv) the health plan pays to such pro- 1 vider or facility, respectively, the amount 2 by which the recognized amount (as de- 3 fined in paragraph (3)(H)) for such serv- 4 ices exceeds the cost-sharing amount for 5 such services (as determined in accordance 6 with clauses (ii) and (iii)); and 7 ‘‘(v) any cost-sharing payments made 8 by the participant, beneficiary, or enrollee 9 with respect to such emergency services so 10 furnished shall be counted toward any in- 11 network deductible or out-of-pocket maxi- 12 mums applied under the plan in the same 13 manner as if such cost-sharing payments 14 were with respect to emergency services 15 furnished by a participating provider and a 16 participating emergency facility; and’’; 17 (2) by redesignating paragraph (2) as para- 18 graph (3); 19 (3) by inserting after paragraph (1) the fol- 20 lowing new paragraph: 21 ‘‘(2) AUDIT PROCESS FOR MEDIAN CON- 22 TRACTED RATES.—Not later than July 1, 2020, the 23 Secretary shall, in consultation with appropriate 24 State agencies, establish through rulemaking a proc- 25 VerDate Sep 11 2014 18:15 Jul 15, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3630.IH H3630 pamtmann on DSKBFK8HB2PROD with BILLS 6 •HR 3630 IH ess under which sponsors and issuers of health plans 1 are audited to ensure that such sponsors and issuers 2 are in compliance with the requirement of applying 3 a median contracted rate under this section that sat- 4 isfies the definition under paragraph (3)(E).’’; and 5 (4) in paragraph (3), as redesignated by para- 6 graph (2) of this subsection— 7 (A) in the matter preceding subparagraph 8 (A), by inserting ‘‘and subsections (e) and (f)’’ 9 after ‘‘this subsection’’; 10 (B) by redesignating subparagraphs (A) 11 through (C) as subparagraphs (B) through (D), 12 respectively; 13 (C) by inserting before subparagraph (B), 14 as redesignated by subparagraph (B) of this 15 paragraph, the following new subparagraph: 16 ‘‘(A) EMERGENCY DEPARTMENT OF A HOS- 17 PITAL.—The term ‘emergency department of a 18 hospital’ includes a hospital outpatient depart- 19 ment that provides emergency services.’’; 20 (D) by amending subparagraph (C), as re- 21 designated by subparagraph (B) of this para- 22 graph, to read as follows: 23 ‘‘(C) EMERGENCY SERVICES.— 24 VerDate Sep 11 2014 18:15 Jul 15, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3630.IH H3630 pamtmann on DSKBFK8HB2PROD with BILLS 7 •HR 3630 IH ‘‘(i) IN GENERAL.—The term ‘emer- 1 gency services’, with respect to an emer- 2 gency medical condition means— 3 ‘‘(I) a medical screening exam- 4 ination (as required under section 5 1867 of the Social Security Act, or as 6 would be required under such section 7 if such section applied to an inde- 8 pendent freestanding emergency de- 9 partment) that is within the capability 10 of the emergency department of a hos- 11 pital or of an independent free- 12 standing emergency department, as 13 applicable, including ancillary services 14 routinely available to the emergency 15 department to evaluate such emer- 16 gency medical condition; and 17 ‘‘(II) within the capabilities of 18 the staff and facilities available at the 19 hospital or the independent free- 20 standing emergency department, as 21 applicable, such further medical exam- 22 ination and treatment as are required 23 under section 1867 of such Act, or as 24 would be required under such section 25 VerDate Sep 11 2014 18:15 Jul 15, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3630.IH H3630 pamtmann on DSKBFK8HB2PROD with BILLS 8 •HR 3630 IH if such section applied to an inde- 1 pendent freestanding emergency de- 2 partment, to stabilize the patient. 3 ‘‘(ii) INCLUSION OF 4 POSTSTABILIZATION SERVICES.—For pur- 5 poses of this subsection and section 2799, 6 in the case of an individual enrolled in a 7 health plan who is furnished services de- 8 scribed in clause (i) by a provider or facil- 9 ity to stabilize such individual with respect 10 to an emergency medical condition, the 11 term ‘emergency services’ shall include 12 such items and services in addition to 13 those described in clause (i) that such a 14 provider or facility determines are needed 15 to be furnished to such individual during 16 the visit in which such individual is so sta- 17 bilized after such stabilization, unless each 18 of the following conditions are met: 19 ‘‘(I) Such a provider or facility 20 determines such individual is able to 21 travel using nonmedical transpor- 22 tation or nonemergency medical trans- 23 portation. 24 VerDate Sep 11 2014 18:15 Jul 15, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3630.IH H3630 pamtmann on DSKBFK8HB2PROD with BILLS 9 •HR 3630 IH ‘‘(II) Such provider furnishing 1 such additional items and services is 2 in compliance with section 2799A(d) 3 with respect to such items and serv- 4 ices.’’; 5 (E) by redesignating subparagraph (D), as 6 redesignated by subparagraph (B) of this para- 7 graph, as subparagraph (I); and 8 (F) by inserting after subparagraph (C), 9 as redesignated by subparagraph (B) of this 10 paragraph, the following new subparagraphs: 11 ‘‘(D) INDEPENDENT FREESTANDING 12 EMERGENCY DEPARTMENT.—The term ‘inde- 13 pendent freestanding emergency department’ 14 means a facility that— 15 ‘‘(i) is geographically separate and 16 distinct and licensed separately from a hos- 17 pital under applicable State law; and 18 ‘‘(ii) provides emergency services. 19 ‘‘(E) MEDIAN CONTRACTED RATE.— 20 ‘‘(i) IN GENERAL.—The term ‘median 21 contracted rate’ means, with respect to an 22 item or service and a health plan (as de- 23 fined in subsection (e)(2)(A))— 24 VerDate Sep 11 2014 18:15 Jul 15, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3630.IH H3630 pamtmann on DSKBFK8HB2PROD with BILLS 10 •HR 3630 IH ‘‘(I) for 2021, the median of the 1 negotiated rates recognized by the 2 sponsor or issuer of such plan (deter- 3 mined with respect to all such plans 4 of such sponsor or such issuer) as the 5 total maximum payment (including 6 the cost-sharing amount imposed for 7 such services (as determined in ac- 8 cordance with paragraph (1)(C)(ii) or 9 subsection (e)(1)(A), as applicable) 10 and the amount to be paid by the plan 11 or issuer) under such plans in 2019 12 for the same or a similar item or serv- 13 ice that is provided by a provider in 14 the same or similar specialty and pro- 15 vided in the geographic region in 16 which the item or service is furnished, 17 consistent with the methodology es- 18 tablished by the Secretary under sec- 19 tion 2(e) of the No Surprises Act, in- 20 creased by the percentage increase in 21 the consumer price index for all urban 22 consumers (United States city aver- 23 age) over 2019 and 2020; and 24 VerDate Sep 11 2014 18:15 Jul 15, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H3630.IH H3630 pamtmann on DSKBFK8HB2PROD with BILLS 11 •HR 3630 IH ‘‘(II) for 2022 and each subse- 1 quent year, the median contracted 2 rate for the previous year, increased 3 by the percentage increase in the con- 4 sumer price index for all urban con- 5 sumers (United States city average) 6 over such previous year. 7 ‘‘(ii) SPECIAL RULE; RULE OF CON- 8 STRUCTION.— 9 ‘‘(I) CERTAIN INSURERS.—The 10 Secretary shall provide pursuant to 11 rulemaking described in clause (ii) 12 that— 13 ‘‘(aa) if the sponsor or 14 issuer of a health plan does not 15 have sufficient information to 16 calculate a median contracted 17 rate for an item or service or 18 provider type, or amount of, 19 claims for items or services (as 20 determined by the Secretary) 21 provided in a particular geo- 22 graphic area (other than in a 23 case described in item (bb)), such 24 sponsor or issuer shall dem- 25 VerDate Sep 11 2014 18:15 Jul 15, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H3630.IH H3630 pamtmann on DSKBFK8HB2PROD with BILLS 12 •HR 3630 IH onstrate that such sponsor or 1 issuer will use any database free 2 of conflicts of interest that has 3 sufficient information reflecting 4 allowed amounts paid to indi- 5 vidual health care providers for 6 relevant services provided in the 7 applicable geographic region 8 (such as All Payer Claims Data- 9 bases (as defined in section 4(d) 10 of the No Surprises Act) of 11 States), and that such sponsor or 12 issuer will use any such database 13 to determine a median contracted 14 rate and cover the cost of access- 15 ing any such database; and 16 ‘‘(bb) in the case of a spon- 17 sor or issuer offering a health 18 plan in a geographic region that 19 did not offer any health plan in 20 such region during 2019, such 21 sponsor or issuer shall use a 22 methodology established by the 23 Secretary for determining the 24 median contracted rate for items 25 VerDate Sep 11 2014 18:15 Jul 15, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H3630.IH H3630 pamtmann on DSKBFK8HB2PROD with BILLS 13 •HR 3630 IH and services covered by such plan 1 for the first year in which such 2 plan is offered in such region, 3 and that, for each succeeding 4 year, the median contracted rate 5 for such items and services under 6 such plan shall be the median 7 contracted rate for such items 8 and services under such plan for 9 the previous year, increased by 10 the percentage increase in the 11 consumer price index for all 12 urban consumers (United States 13 city average) over such previous 14 year. 15 ‘‘(II) RULE OF CONSTRUC- 16 TION.—Nothing in this subparagraph 17 shall prevent the sponsor or issuer of 18 a health plan from establishing sepa- 19 rate calculations of a median con- 20 tracted rate under this subparagraph 21 for items and services delivered in 22 non-hospital facilities, including inde- 23 pendent freestanding emergency de- 24 partments. 25 VerDate Sep 11 2014 18:15 Jul 15, 2019 Jkt 089200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\H3630.IH H3630 pamtmann on DSKBFK8HB2PROD with BILLS 14 •HR 3630 IH ‘‘(F) NONPARTICIPATING EMERGENCY FA- 1 CILITY; PARTICIPATING EMERGENCY FACIL- 2 ITY.— 3 ‘‘(i) NONPARTICIPATING EMERGENCY 4 FACILITY.—The term ‘nonparticipat [Text truncated for display. 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