Air Ambulance Affordability Act of 2019

I 116TH CONGRESS 1ST SESSION H. R. 3784 To amend title XXVII of the Public Health Service Act and title XI of the Social Security Act to prohibit surprise billing with respect to air ambulance services. IN THE HOUSE OF REPRESENTATIVES JULY 16, 2019 Mr. NEGUSE introduced the following bill; which was referred to the Committee on Energy and Commerce A BILL To amend title XXVII of the Public Health Service Act and title XI of the Social Security Act to prohibit sur- prise billing with respect to air ambulance services. 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 ‘‘Air Ambulance Afford- 4 ability Act of 2019’’. 5 SEC. 2. PROHIBITING SURPRISE BILLING WITH RESPECT 6 TO AIR AMBULANCE SERVICES. 7 (a) AIR AMBULANCE SERVICES.— 8 VerDate Sep 11 2014 22:47 Jul 25, 2019 Jkt 034408 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H3784.IH H3784 Pbinns on DSK79D2C42PROD with BILLS 2 •HR 3784 IH (1) IN GENERAL.—Section 2719A of the Public 1 Health Service Act (42 U.S.C. 300gg–19a) is 2 amended by adding at the end the following new 3 subsections: 4 ‘‘(e) AIR AMBULANCE SERVICES.— 5 ‘‘(1) IN GENERAL.—Subject to paragraph (2), 6 in the case of air ambulance services furnished to a 7 participant, beneficiary, or enrollee of a health plan 8 (as defined in paragraph (3)(A)) by a nonpartici- 9 pating provider (as defined in paragraph (3)(C)), the 10 plan— 11 ‘‘(A) shall not impose on such participant, 12 beneficiary, or enrollee a cost-sharing amount 13 (expressed as a copayment amount or coinsur- 14 ance rate) for such services so furnished that is 15 greater than the cost-sharing amount that 16 would apply under such plan had such services 17 been furnished by a participating provider; 18 ‘‘(B) shall calculate such cost-sharing 19 amount as if the negotiated rate that would 20 have been charged by such participating pro- 21 vider for such services were equal to the 22 amount determined in accordance with sub- 23 section (f) for such services (or, in the case of 24 such services furnished in a State described in 25 VerDate Sep 11 2014 22:47 Jul 25, 2019 Jkt 034408 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3784.IH H3784 Pbinns on DSK79D2C42PROD with BILLS 3 •HR 3784 IH paragraph (3)(E)(i), the amount determined by 1 such State for such services in accordance with 2 the method described in such paragraph); 3 ‘‘(C) shall pay to such provider furnishing 4 such services to such participant, beneficiary, or 5 enrollee the amount by which the recognized 6 amount (as defined in paragraph (3)(E)) for 7 such services exceeds the cost-sharing amount 8 imposed for such services (as determined in ac- 9 cordance with subparagraphs (A) and (B)); and 10 ‘‘(D) shall count toward any deductible or 11 out-of-pocket maximums applied under the plan 12 any cost-sharing payments made by the partici- 13 pant, beneficiary, or enrollee with respect to 14 such services so furnished in the same manner 15 as if such cost-sharing payments were with re- 16 spect to services furnished by a participating 17 provider. 18 ‘‘(2) EXCEPTION FOR CERTAIN SERVICES.—The 19 provisions of paragraph (1) shall not apply in the 20 case of air ambulance services that— 21 ‘‘(A) are not furnished with respect to an 22 individual with an emergency medical condition 23 (as defined in subsection (b)(2)(A)); and 24 VerDate Sep 11 2014 22:47 Jul 25, 2019 Jkt 034408 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3784.IH H3784 Pbinns on DSK79D2C42PROD with BILLS 4 •HR 3784 IH ‘‘(B) are furnished by a provider that is in 1 compliance with the requirement of section 2 1128A(t)(3) of the Social Security Act with re- 3 spect to such services. 4 ‘‘(3) DEFINITIONS.—In this subsection and 5 subsection (f): 6 ‘‘(A) HEALTH PLAN.—The term ‘health 7 plan’ means a group health plan and health in- 8 surance coverage offered by a heath insurance 9 issuer in the group or individual market. 10 ‘‘(B) PROVIDER.—The term ‘provider’ 11 means a provider of services or a supplier (as 12 such terms are defined in section 1861 of the 13 Social Security Act). 14 ‘‘(C) NONPARTICIPATING PROVIDER.—The 15 term ‘nonparticipating provider’ means, with re- 16 spect to air ambulance services and a group 17 health plan or health insurance coverage offered 18 by a health insurance issuer, a provider or sup- 19 plier of such services that is licensed by the 20 State involved to furnish such services and that 21 does not have a contractual relationship with 22 the plan or coverage for furnishing such serv- 23 ices. 24 VerDate Sep 11 2014 22:47 Jul 25, 2019 Jkt 034408 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3784.IH H3784 Pbinns on DSK79D2C42PROD with BILLS 5 •HR 3784 IH ‘‘(D) PARTICIPATING PROVIDER.—The 1 term ‘participating provider’ means, with re- 2 spect to air ambulance services and a group 3 health plan or health insurance coverage offered 4 by a health insurance issuer, a provider or sup- 5 plier of such services that is licensed by the 6 State involved to furnish such services and that 7 has a contractual relationship with the plan or 8 coverage for services. 9 ‘‘(E) RECOGNIZED AMOUNT.—The term 10 ‘recognized amount’ means, with respect to air 11 ambulance services— 12 ‘‘(i) in the case of such services fur- 13 nished in a State that has in effect a State 14 law that provides for a method for deter- 15 mining the amount of payment that is re- 16 quired to be covered by a health plan or 17 health insurance issuer offering group or 18 individual health insurance coverage regu- 19 lated by such State in the case of a partici- 20 pant, beneficiary, or enrollee covered under 21 such plan or coverage and receiving such 22 services from a nonparticipating provider, 23 not more than the amount determined in 24 accordance with such law plus the cost- 25 VerDate Sep 11 2014 22:47 Jul 25, 2019 Jkt 034408 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3784.IH H3784 Pbinns on DSK79D2C42PROD with BILLS 6 •HR 3784 IH sharing amount imposed for such services 1 (as determined in accordance with para- 2 graph (1)); or 3 ‘‘(ii) in the case of such services fur- 4 nished in a State that does not have in ef- 5 fect such a law, an amount determined in 6 accordance with the independent dispute 7 resolution process established under sub- 8 section (f). 9 ‘‘(f) INDEPENDENT DISPUTE RESOLUTION PROC- 10 ESS.— 11 ‘‘(1) ESTABLISHMENT.— 12 ‘‘(A) IN GENERAL.—Not later than 1 year 13 after the date of the enactment of this sub- 14 section, the Secretary, in consultation with the 15 Secretary of Labor, shall establish by regulation 16 an independent dispute resolution process (re- 17 ferred to in this subsection as the ‘IDR proc- 18 ess’) under which entities certified under para- 19 graph (2) (in this subsection referred to as ‘cer- 20 tified IDR entities’) resolve specified claims of 21 nonparticipating providers or health plans, tak- 22 ing into account the factors described in sub- 23 paragraph (C). Such process shall prohibit such 24 an entity from participating in the resolution of 25 VerDate Sep 11 2014 22:47 Jul 25, 2019 Jkt 034408 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3784.IH H3784 Pbinns on DSK79D2C42PROD with BILLS 7 •HR 3784 IH such a claim if such entity has a conflict of in- 1 terest with respect to such provider, facility, or 2 the health plan involved. 3 ‘‘(B) SPECIFIED CLAIM.—For purposes of 4 subparagraph (A), the term ‘specified claim’ 5 means a claim by a nonparticipating provider or 6 health plan that, with respect to air ambulance 7 services furnished by such provider for which a 8 health plan is required to make payment pursu- 9 ant to subsection (e)(1), is made under the IDR 10 process not later than 30 days after the services 11 are furnished. 12 ‘‘(C) FACTORS.—The factors described in 13 this subparagraph include— 14 ‘‘(i) commercially reasonable rates for 15 comparable services furnished in the same 16 geographic area (which shall take into con- 17 sideration in-network rates for that geo- 18 graphic area and not charges); and 19 ‘‘(ii) other factors that may be sub- 20 mitted at the discretion of either party, 21 which may include— 22 ‘‘(I) the level of training, edu- 23 cation, experience, and quality and 24 VerDate Sep 11 2014 22:47 Jul 25, 2019 Jkt 034408 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3784.IH H3784 Pbinns on DSK79D2C42PROD with BILLS 8 •HR 3784 IH outcomes measurements of the pro- 1 vider; 2 ‘‘(II) the circumstances and com- 3 plexity of the particular dispute, in- 4 cluding the time and place of the serv- 5 ice; 6 ‘‘(III) the market share held by 7 the provider or that of the plan; 8 ‘‘(IV) demonstration of good 9 faith efforts (or lack of good faith ef- 10 forts) made by the provider or the 11 plan to contract for negotiated rates, 12 if applicable; and 13 ‘‘(V) other relevant economic as- 14 pects of provider reimbursement for 15 the same specialty within the same ge- 16 ographic area. 17 ‘‘(2) CERTIFICATION OF ENTITIES.— 18 ‘‘(A) PROCESS OF CERTIFICATION.—As 19 part of the regulation described in paragraph 20 (1), the Secretary, in consultation with the Sec- 21 retary of Labor, shall establish a certification 22 process under which eligible entities may be cer- 23 tified to carry out the IDR process. 24 VerDate Sep 11 2014 22:47 Jul 25, 2019 Jkt 034408 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3784.IH H3784 Pbinns on DSK79D2C42PROD with BILLS 9 •HR 3784 IH ‘‘(B) ELIGIBILITY.—For purposes of sub- 1 paragraph (A), an eligible entity is an entity 2 that is a nongovernmental entity (such as the 3 American Arbitration Association). 4 ‘‘(3) SELECTION OF CERTIFIED IDR ENTITY 5 FOR A SPECIFIED CLAIM.—With respect to the reso- 6 lution of a specified claim under the IDR process, 7 the health plan and the nonparticipating provider in- 8 volved shall agree on a certified IDR entity to re- 9 solve such claim. In the case that such plan and 10 such provider cannot so agree, such an entity shall 11 be selected by the Secretary at random. 12 ‘‘(4) PAYMENT DETERMINATION.— 13 ‘‘(A) TIMING.—A certified IDR entity that 14 receives a request from a nonparticipating pro- 15 vider or health plan under this subsection shall, 16 not later than 30 days after receiving such re- 17 quest, determine the amount the health plan is 18 required to pay such provider or facility for 19 services described in paragraph (1), in accord- 20 ance with subparagraph (C), in the case that a 21 settlement described in subparagraph (B) is not 22 reached. 23 ‘‘(B) SETTLEMENT.— 24 VerDate Sep 11 2014 22:47 Jul 25, 2019 Jkt 034408 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3784.IH H3784 Pbinns on DSK79D2C42PROD with BILLS 10 •HR 3784 IH ‘‘(i) IN GENERAL.—If such entity de- 1 termines that a settlement between the 2 health plan and the provider is likely, the 3 entity may direct the parties to attempt, 4 for a period not to exceed 10 days, a good 5 faith negotiation for a settlement. 6 ‘‘(ii) TIMING.—The period for a set- 7 tlement described in clause (i) shall accrue 8 towards the 30-day period required under 9 subparagraph (A). 10 ‘‘(C) DETERMINATION OF AMOUNT.— 11 ‘‘(i) DECISIONS.—The health plan and 12 the nonparticipating provider shall each 13 submit to the certified IDR entity a final 14 offer of payment with respect to services 15 which are the subject of the specified 16 claim. Such entity shall select the offer 17 that such entity determines is the most 18 reasonable based on the factors described 19 in paragraph (1)(C). 20 ‘‘(ii) EFFECT OF DECISION.—A deci- 21 sion of a certified IDR entity under clause 22 (ii)— 23 ‘‘(I) shall be binding; and 24 VerDate Sep 11 2014 22:47 Jul 25, 2019 Jkt 034408 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H3784.IH H3784 Pbinns on DSK79D2C42PROD with BILLS 11 •HR 3784 IH ‘‘(II) shall not be subject to judi- 1 cial review, except in a case described 2 in any of paragraphs (1) through (4) 3 of section 10(a) of title 9, United 4 States Code, as determined by the 5 Secretary in consultation with the 6 Secretary of Labor. 7 ‘‘(iii) COSTS OF INDEPENDENT DIS- 8 PUTE RESOLUTION PROCESS.—The party 9 whose calculation is not chosen under sub- 10 paragraph (B)(ii) shall be responsible for 11 paying all fees charged by the certified 12 IDR entity. If the parties reach a settle- 13 ment prior to completion of the IDR proc- 14 ess, the costs of such process shall be di- 15 vided equally between the parties, unless 16 the parties otherwise agree. 17 ‘‘(iv) PAYMENT.—Not later than 30 18 days after a decision described in clause (i) 19 is made, the health plan shall pay to the 20 provider or supplier of the services with re- 21 spect to which the specified claim is made 22 the amount determined under this sub- 23 section. 24 VerDate Sep 11 2014 22:47 Jul 25, 2019 Jkt 034408 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H3784.IH H3784 Pbinns on DSK79D2C42PROD with BILLS 12 •HR 3784 IH ‘‘(v) PUBLIC AVAILABILITY.—The cer- 1 tified IDR entity shall make each final 2 offer selected under clause (i) available to 3 the public. Any information submitted to 4 the entity by the health plan, provider, or 5 facility, other than such final offer, may 6 not be disclosed by the entity.’’. 7 (2) EFFECTIVE DATE.—The amendments made 8 by this subsection shall apply with respect to plan 9 years beginning on or after January 1, 2021. 10 (b) PREVENTING CERTAIN CASES OF BALANCE 11 BILLING.—Section 1128A of the Social Security Act (42 12 U.S.C. 1320a–7a) is amended by adding at the end the 13 following new subsections: 14 ‘‘(t)(1) Subject to paragraph (2), in the case of an 15 individual with benefits under a health plan or health in- 16 surance coverage offered in the group or individual market 17 who is furnished on or after January 1, 2021, air ambu- 18 lance services by a nonparticipating provider (as defined 19 in section 2719A(e)(3) of the Public Health Service Act), 20 if such provider holds the individual liable for a payment 21 amount for such services so furnished that is more than 22 the cost-sharing amount for such services (as determined 23 in accordance with section 2719A(e)(1) of the Public 24 Health Service Act), such provider shall be subject, in ad- 25 VerDate Sep 11 2014 22:47 Jul 25, 2019 Jkt 034408 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H3784.IH H3784 Pbinns on DSK79D2C42PROD with BILLS 13 •HR 3784 IH dition to any other penalties that may be prescribed by 1 law, to a civil money penalty of not more than an amount 2 determined appropriate by the Secretary for each specified 3 claim. 4 ‘‘(2) Paragraph (1) shall not apply to a nonpartici- 5 pating provider, with respect to air ambulance services 6 furnished b [Text truncated for display. 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