Consumer Protections Against Surprise Medical Bills Act of 2020

I 116TH CONGRESS 2D SESSION H. R. 5826 To amend title XXVII of the Public Health Service Act, the Employee Retirement Income Security Act of 1974, the Internal Revenue Code of 1986, and title XI of the Social Security Act to prevent certain cases of out-of-network surprise medical bills, strengthen health care consumer protections, and improve health care information transparency, and for other purposes. IN THE HOUSE OF REPRESENTATIVES FEBRUARY 10, 2020 Mr. NEAL (for himself, Mr. BRADY, Mr. SUOZZI, Mr. LAHOOD, Mr. HOLDING, Mr. KELLY of Pennsylvania, Mr. ESTES, Mr. THOMPSON of California, Mr. BEYER, Ms. SHALALA, Mr. MORELLE, Mr. LARSON of Connecticut, Ms. SCHRIER, Mr. SCHNEIDER, Mr. DANNY K. DAVIS of Illinois, Mr. EVANS, Mr. LEWIS, Mr. HIGGINS of New York, Mr. NUNES, Mr. SMITH of Nebraska, Mr. FERGUSON, Mr. WENSTRUP, Mr. RICE of South Caro- lina, Mrs. WALORSKI, Mr. SCHWEIKERT, Mr. REED, Mr. ARRINGTON, Mr. MARCHANT, Mr. BUCHANAN, Mr. THOMPSON of Pennsylvania, Mr. KILDEE, and Mr. SMITH of Missouri) introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committees on Ways and Means, Education and Labor, and Transportation and Infrastructure, for a period to be subsequently deter- mined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To amend title XXVII of the Public Health Service Act, the Employee Retirement Income Security Act of 1974, the Internal Revenue Code of 1986, and title XI of the Social Security Act to prevent certain cases of out- of-network surprise medical bills, strengthen health care VerDate Sep 11 2014 02:30 Feb 11, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6652 E:\BILLS\H5826.IH H5826 kjohnson on DSK79L0C42PROD with BILLS 2 •HR 5826 IH consumer protections, and improve health care informa- tion transparency, 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; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Consumer Protections Against Surprise Medical Bills 5 Act of 2020’’. 6 (b) TABLE OF CONTENTS.—The table of contents of 7 this Act is as follows: 8 Sec. 1. Short title; table of contents. Sec. 2. Consumer protections through requirements on health plans to prevent surprise medical bills for emergency services. Sec. 3. Consumer protections through requirements on health plans to prevent surprise medical bills for non-emergency services performed by nonparticipating providers at certain participating facilities. Sec. 4. Consumer protections through application of health plan external review in cases of certain surprise medical bills. Sec. 5. Consumer protections through health plan transparency requirements. Sec. 6. Consumer protections through health plan requirement for fair and hon- est advance cost estimate. Sec. 7. Determination through open negotiation and mediation of out-of-net- work rates to be paid by health plans. Sec. 8. Prohibiting balance billing practices by providers for emergency services, for services furnished by nonparticipating provider at partici- pating facility, and in certain cases of misinformation. Sec. 9. Additional consumer protections. Sec. 10. Reporting requirements regarding air ambulance services. Sec. 11. GAO report on effects of legislation. Sec. 12. Transitional rule allowing deduction for surprise billing expenses below AGI floor. SEC. 2. CONSUMER PROTECTIONS THROUGH REQUIRE- 9 MENTS ON HEALTH PLANS TO PREVENT SUR- 10 PRISE MEDICAL BILLS FOR EMERGENCY 11 SERVICES. 12 (a) PHSA AMENDMENTS.— 13 VerDate Sep 11 2014 02:30 Feb 11, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H5826.IH H5826 kjohnson on DSK79L0C42PROD with BILLS 3 •HR 5826 IH (1) IN GENERAL.—Section 2719A of the Public 1 Health Service Act (42 U.S.C. 300gg–19a) is 2 amended— 3 (A) in subsection (b)— 4 (i) in the heading, by striking ‘‘COV- 5 ERAGE’’ and inserting ‘‘COST-SHARING 6 AND PAYMENT’’; 7 (ii) in paragraph (1)— 8 (I) in the matter preceding sub- 9 paragraph (A)— 10 (aa) by striking ‘‘a group 11 health plan, or a health insurance 12 issuer offering group or indi- 13 vidual health insurance issuer,’’ 14 and inserting ‘‘a health plan’’; 15 (bb) by inserting ‘‘and, for 16 plan year 2022 or a subsequent 17 plan year, with respect to emer- 18 gency services in an independent 19 freestanding emergency depart- 20 ment’’ after ‘‘emergency depart- 21 ment of a hospital’’; 22 (cc) by striking ‘‘the plan or 23 issuer’’ and inserting ‘‘the plan’’; 24 and 25 VerDate Sep 11 2014 02:30 Feb 11, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H5826.IH H5826 kjohnson on DSK79L0C42PROD with BILLS 4 •HR 5826 IH (dd) by striking ‘‘(as defined 1 in paragraph (2)(B))’’; 2 (II) in subparagraph (B), by in- 3 serting ‘‘or a participating facility 4 that is an emergency department of a 5 hospital or an independent free- 6 standing emergency department (in 7 this subsection referred to as a ‘par- 8 ticipating emergency facility’)’’ after 9 ‘‘participating provider’’; and 10 (III) in subparagraph (C)— 11 (aa) in the matter preceding 12 clause (i), by inserting ‘‘by a 13 nonparticipating provider or a 14 nonparticipating facility that is 15 an emergency department of a 16 hospital or an independent free- 17 standing emergency department’’ 18 after ‘‘enrollee’’; 19 (bb) by striking clause (i); 20 (cc) by striking ‘‘(ii)(I) such 21 services’’ and inserting ‘‘(i) such 22 services’’; 23 (dd) by striking ‘‘where the 24 provider of services does not have 25 VerDate Sep 11 2014 02:30 Feb 11, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H5826.IH H5826 kjohnson on DSK79L0C42PROD with BILLS 5 •HR 5826 IH a contractual relationship with 1 the plan for the providing of 2 services’’; 3 (ee) by striking ‘‘emergency 4 department services received 5 from providers who do have such 6 a contractual relationship with 7 the plan; and’’ and inserting 8 ‘‘emergency services received 9 from participating providers and 10 participating emergency facilities 11 with respect to such plan;’’; 12 (ff) by striking ‘‘(II) if such 13 services’’ and all that follows 14 through ‘‘were provided in-net- 15 work’’ and inserting the fol- 16 lowing: 17 ‘‘(ii) the cost-sharing requirement is 18 not greater than the requirement that 19 would apply if such services were furnished 20 by a participating provider or a partici- 21 pating emergency facility, as applicable;’’; 22 and 23 (gg) by adding at the end 24 the following new clauses: 25 VerDate Sep 11 2014 02:30 Feb 11, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H5826.IH H5826 kjohnson on DSK79L0C42PROD with BILLS 6 •HR 5826 IH ‘‘(iii) such cost-sharing requirement is 1 calculated as if the contracted rate for 2 such services if furnished by a partici- 3 pating provider or a participating emer- 4 gency facility were equal to the recognized 5 amount for such services; 6 ‘‘(iv) the health plan pays to such pro- 7 vider or facility, respectively, the amount 8 by which the out-of-network rate for such 9 services exceeds the cost-sharing amount 10 for such services (as determined in accord- 11 ance with clauses (ii) and (iii)); and 12 ‘‘(v) any deductible or out-of-pocket 13 maximum that would apply if such services 14 were furnished by a participating provider 15 or a participating emergency facility shall 16 be the deductible or out-of-pocket max- 17 imum that applies; and’’; and 18 (iii) by striking paragraph (2) and in- 19 serting the following new paragraph: 20 ‘‘(2) AUDIT PROCESS AND RULEMAKING PROC- 21 ESS FOR MEDIAN CONTRACTED RATES.— 22 ‘‘(A) AUDIT PROCESS.— 23 ‘‘(i) IN GENERAL.—Not later than 24 July 1, 2021, the Secretary, in coordina- 25 VerDate Sep 11 2014 02:30 Feb 11, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H5826.IH H5826 kjohnson on DSK79L0C42PROD with BILLS 7 •HR 5826 IH tion with the Secretary of the Treasury 1 and the Secretary of Labor and in con- 2 sultation with the National Association of 3 Insurance Commissioners, shall establish 4 through rulemaking a process, in accord- 5 ance with clause (ii), under which health 6 plans are audited by the Secretary to en- 7 sure that— 8 ‘‘(I) such plans are in compliance 9 with the requirement of applying a 10 median contracted rate under this sec- 11 tion; and 12 ‘‘(II) that such median con- 13 tracted rate so applied satisfies the 14 definition under subsection (k)(8) 15 with respect to the year involved. 16 ‘‘(ii) AUDIT SAMPLES.—Under the 17 process established pursuant to clause (i), 18 the Secretary— 19 ‘‘(I) shall conduct audits de- 20 scribed in such clause of a sample of 21 health plans; and 22 ‘‘(II) may audit any health plan 23 if the Secretary has received any com- 24 plaint about such plan that involves 25 VerDate Sep 11 2014 02:30 Feb 11, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H5826.IH H5826 kjohnson on DSK79L0C42PROD with BILLS 8 •HR 5826 IH the compliance of the plan with the 1 requirement described in such clause. 2 ‘‘(B) RULEMAKING.—Not later than July 3 1, 2021, the Secretary, in coordination with the 4 Secretary of Labor and the Secretary of the 5 Treasury, shall establish through rulemaking— 6 ‘‘(i) the methodology the sponsor or 7 issuer of a health plan shall use to deter- 8 mine the median contracted rate, which 9 shall account for relevant payment adjust- 10 ments that take into account facility type 11 that are otherwise taken into account for 12 purposes of determining payment amounts 13 with respect to participating facilities; and 14 ‘‘(ii) the information such sponsor or 15 issuer shall share with the nonparticipating 16 provider involved when making such a de- 17 termination.’’; and 18 (B) by adding at the end the following new 19 subsection: 20 ‘‘(k) DEFINITIONS.—For purposes of this section: 21 ‘‘(1) CONTRACTED RATE.—The term ‘con- 22 tracted rate’ means, with respect to a health plan 23 and a health care provider or health care facility fur- 24 nishing an item or service to a beneficiary, partici- 25 VerDate Sep 11 2014 02:30 Feb 11, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H5826.IH H5826 kjohnson on DSK79L0C42PROD with BILLS 9 •HR 5826 IH pant, or enrollee of such plan, the agreed upon total 1 payment amount (inclusive of any cost-sharing) to 2 such provider or facility for such item or service. 3 ‘‘(2) DURING A VISIT.—The term ‘during a 4 visit’ shall, with respect to an individual who is fur- 5 nished items and services at a participating facility, 6 include equipment and devices, telemedicine services, 7 imaging services, laboratory services, preoperative 8 and postoperative services, and such other items and 9 services as the Secretary may specify furnished to 10 such individual, regardless of whether or not the 11 provider furnishing such items or services is at the 12 facility. 13 ‘‘(3) EMERGENCY DEPARTMENT OF A HOS- 14 PITAL.—The term ‘emergency department of a hos- 15 pital’ includes a hospital outpatient department that 16 provides emergency services. 17 ‘‘(4) EMERGENCY MEDICAL CONDITION.—The 18 term ‘emergency medical condition’ means a medical 19 condition manifesting itself by acute symptoms of 20 sufficient severity (including severe pain) such that 21 a prudent layperson, who possesses an average 22 knowledge of health and medicine, could reasonably 23 expect the absence of immediate medical attention to 24 result in a condition described in clause (i), (ii), or 25 VerDate Sep 11 2014 02:30 Feb 11, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H5826.IH H5826 kjohnson on DSK79L0C42PROD with BILLS 10 •HR 5826 IH (iii) of section 1867(e)(1)(A) of the Social Security 1 Act. 2 ‘‘(5) EMERGENCY SERVICES.— 3 ‘‘(A) IN GENERAL.—The term ‘emergency 4 services’, with respect to an emergency medical 5 condition, means— 6 ‘‘(i) a medical screening examination 7 (as required under section 1867 of the So- 8 cial Security Act, or as would be required 9 under such section if such section applied 10 to an independent freestanding emergency 11 department) that is within the capability of 12 the emergency department of a hospital or 13 of an independent freestanding emergency 14 department, as applicable, including ancil- 15 lary services routinely available to the 16 emergency department to evaluate such 17 emergency medical condition; and 18 ‘‘(ii) within the capabilities of the 19 staff and facilities available at the hospital 20 or the independent freestanding emergency 21 department, as applicable, such further 22 medical examination and treatment as are 23 required under section 1867 of such Act, 24 or as would be required under such section 25 VerDate Sep 11 2014 02:30 Feb 11, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H5826.IH H5826 kjohnson on DSK79L0C42PROD with BILLS 11 •HR 5826 IH if such section applied to an independent 1 freestanding emergency department, to 2 stabilize the patient (regardless of the de- 3 partment of the hospital in which such fur- 4 ther examination or treatment is fur- 5 nished). 6 ‘‘(B) INCLUSION OF ADDITIONAL SERV- 7 ICES.—In the case of an individual enrolled in 8 a health plan who is furnished services de- 9 scribed in subparagraph (A) by a provider or 10 hospital or independent freestanding emergency 11 department to stabilize such individual with re- 12 spect to an emergency medical condition, the 13 term ‘emergency services’ shall include, in addi- 14 tion to those described in subparagraph (A), 15 items and services furnished as part of out- 16 patient observation or an inpatient or out- 17 patient stay during a visit in which such indi- 18 vidual is so stabilized with respect to such 19 emergency condition if— 20 ‘‘(i) such items and services would 21 otherwise be covered under such plan if 22 furnished by a participating provider or 23 participating facility; and 24 VerDate Sep 11 2014 02:30 Feb 11, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H5826.IH H5826 kjohnson on DSK79L0C42PROD with BILLS 12 •HR 5826 IH ‘‘(ii) such items and services are fur- 1 nished— 2 ‘‘(I) to maintain, improve, or re- 3 solve the individual’s stabilization with 4 respect to such condition, unless any 5 circumstance described in subpara- 6 graph (C) has occurred with respect 7 to such individual before such items 8 and services are furnished; or 9 ‘‘(II) for any purpose not de- 10 scribed in subclause (I), unless each 11 of the criteria described in subpara- 12 graph (D) have been met with respect 13 to such individual and such item or 14 service. 15 ‘‘(C) CIRCUMSTANCES.—Fo [Text truncated for display. 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