Ban Surprise Billing Act

I 116TH CONGRESS 2D SESSION H. R. 5800 To end surprise medical billing and increase transparency in health coverage. IN THE HOUSE OF REPRESENTATIVES FEBRUARY 7, 2020 Mr. SCOTT of Virginia (for himself and Ms. FOXX of North Carolina) intro- duced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committees on Education and Labor, Ways and Means, and Oversight and Reform, 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 end surprise medical billing and increase transparency in health coverage. 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 ‘‘Ban Surprise Billing 4 Act’’. 5 VerDate Sep 11 2014 22:14 Feb 07, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H5800.IH H5800 pamtmann on DSKBC07HB2PROD with BILLS 2 •HR 5800 IH SEC. 2. PREVENTING SURPRISE MEDICAL BILLS. 1 (a) PUBLIC HEALTH SERVICE ACT AMENDMENTS.— 2 Section 2719A of the Public Health Service Act (42 3 U.S.C. 300gg–19a) is amended— 4 (1) by amending subsection (b) to read as fol- 5 lows: 6 ‘‘(b) COVERAGE OF EMERGENCY SERVICES.— 7 ‘‘(1) IN GENERAL.—If a group health plan, or 8 a health insurance issuer offering group or indi- 9 vidual health insurance coverage, provides or covers 10 any benefits with respect to services in an emergency 11 department of a hospital or with respect to emer- 12 gency services in an independent freestanding emer- 13 gency department (as defined in paragraph (3)(D)), 14 the plan or issuer shall cover emergency services (as 15 defined in paragraph (3)(C))— 16 ‘‘(A) without the need for any prior au- 17 thorization determination; 18 ‘‘(B) whether the health care provider fur- 19 nishing such services is a participating provider 20 or a participating emergency facility, as appli- 21 cable, with respect to such services; 22 ‘‘(C) in a manner so that, if such services 23 are provided to a participant, beneficiary, or en- 24 rollee by a nonparticipating provider or a non- 25 participating emergency facility— 26 VerDate Sep 11 2014 22:14 Feb 07, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H5800.IH H5800 pamtmann on DSKBC07HB2PROD with BILLS 3 •HR 5800 IH ‘‘(i) such services will be provided 1 without imposing any requirement under 2 the plan or coverage for prior authoriza- 3 tion of services or any limitation on cov- 4 erage that is more restrictive than the re- 5 quirements or limitations that apply to 6 emergency services received from partici- 7 pating providers and participating emer- 8 gency facilities with respect to such plan or 9 coverage, respectively; 10 ‘‘(ii) the cost-sharing requirement (ex- 11 pressed as a copayment amount or coinsur- 12 ance rate) is not greater than the require- 13 ment that would apply if such services 14 were provided by a participating provider 15 or a participating emergency facility; 16 ‘‘(iii) such cost-sharing requirement is 17 calculated as if the total amount that 18 would have been charged for such services 19 by such participating provider or partici- 20 pating emergency facility were equal to the 21 recognized amount (as defined in para- 22 graph (3)(H)) for such services, plan or 23 coverage, and year; 24 VerDate Sep 11 2014 22:14 Feb 07, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H5800.IH H5800 pamtmann on DSKBC07HB2PROD with BILLS 4 •HR 5800 IH ‘‘(iv) the group health plan or health 1 insurance issuer, respectively, pays to such 2 provider or facility, respectively the 3 amount by which the recognized amount 4 for such services and year involved exceeds 5 the cost-sharing amount for such services 6 (as determined in accordance with clauses 7 (ii) and (iii)) and year; and 8 ‘‘(v) any cost-sharing payments made 9 by the participant, beneficiary, or enrollee 10 with respect to such emergency services so 11 furnished shall be counted toward any in- 12 network deductible or out-of-pocket maxi- 13 mums applied under the plan or coverage, 14 respectively (and such in-network deduct- 15 ible and out-of-pocket maximums shall be 16 applied) in the same manner as if such 17 cost-sharing payments were made with re- 18 spect to emergency services furnished by a 19 participating provider or a participating 20 emergency facility; and 21 ‘‘(D) without regard to any other term or 22 condition of such coverage (other than exclusion 23 or coordination of benefits, or an affiliation or 24 waiting period, permitted under section 2704 of 25 VerDate Sep 11 2014 22:14 Feb 07, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H5800.IH H5800 pamtmann on DSKBC07HB2PROD with BILLS 5 •HR 5800 IH this Act, including as incorporated pursuant to 1 section 715 of the Employee Retirement Income 2 Security Act of 1974 and section 9815 of the 3 Internal Revenue Code of 1986, and other than 4 applicable cost-sharing). 5 ‘‘(2) AUDIT PROCESS AND REGULATIONS FOR 6 MEDIAN CONTRACTED RATES.— 7 ‘‘(A) AUDIT PROCESS.— 8 ‘‘(i) IN GENERAL.—Not later than 9 July 1, 2021, the Secretary, in consulta- 10 tion with appropriate State agencies and 11 the Secretary of Labor and the Secretary 12 of the Treasury, shall establish through 13 rulemaking a process, in accordance with 14 clause (ii), under which group health plans 15 and health insurance issuers offering 16 health insurance coverage in the group or 17 individual market are audited by the Sec- 18 retary or applicable State authority to en- 19 sure that— 20 ‘‘(I) such plans and coverage are 21 in compliance with the requirement of 22 applying a median contracted rate 23 under this section; and 24 VerDate Sep 11 2014 22:14 Feb 07, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H5800.IH H5800 pamtmann on DSKBC07HB2PROD with BILLS 6 •HR 5800 IH ‘‘(II) such median contracted 1 rate so applied satisfies the definition 2 under paragraph (3)(E) with respect 3 to the year involved, including with re- 4 spect to a group health plan or health 5 insurance issuer described in clause 6 (ii) of such paragraph (3)(E). 7 ‘‘(ii) AUDIT SAMPLES.—Under the 8 process established pursuant to clause (i), 9 the Secretary— 10 ‘‘(I) shall conduct audits de- 11 scribed in such clause, with respect to 12 a year (beginning with 2022), of a 13 sample with respect to such year of 14 claims data from not more than 25 15 group health plans and health insur- 16 ance issuers offering health insurance 17 coverage in the group or individual 18 market; and 19 ‘‘(II) may audit any group health 20 plan or health insurance issuer offer- 21 ing health insurance coverage in the 22 group or individual market if the Sec- 23 retary has received any complaint 24 about such plan or coverage, respec- 25 VerDate Sep 11 2014 22:14 Feb 07, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H5800.IH H5800 pamtmann on DSKBC07HB2PROD with BILLS 7 •HR 5800 IH tively, that involves the compliance of 1 the plan or coverage, respectively, 2 with either of the requirements de- 3 scribed in subclauses (I) and (II) of 4 such clause. 5 ‘‘(iii) REPORTS.—Beginning for 2022, 6 the Secretary shall annually submit to 7 Congress a report on the number of plans 8 and issuers with respect to which audits 9 were conducted during such year pursuant 10 to this subparagraph. 11 ‘‘(B) RULEMAKING.—Not later than July 12 1, 2021, the Secretary, in consultation with the 13 Secretary of Labor and the Secretary of the 14 Treasury, shall establish through rulemaking— 15 ‘‘(i) the methodology the group health 16 plan or health insurance issuer offering 17 health insurance coverage in the group or 18 individual market shall use to determine 19 the median contracted rate, differentiating 20 by line of business; 21 ‘‘(ii) the information such plan or 22 issuer, respectively, shall share with the 23 nonparticipating provider or nonpartici- 24 VerDate Sep 11 2014 22:14 Feb 07, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H5800.IH H5800 pamtmann on DSKBC07HB2PROD with BILLS 8 •HR 5800 IH pating facility, as applicable, when making 1 such a determination; 2 ‘‘(iii) the geographic regions applied 3 for purposes of this subparagraph, taking 4 into account access to items and services in 5 rural and underserved areas, including 6 health professional shortage areas, as de- 7 fined in section 332; and 8 ‘‘(iv) a process to receive complaints 9 of violations of the requirements described 10 in subclauses (I) and (II) of subparagraph 11 (A)(i) by group health plans and health in- 12 surance issuers offering health insurance 13 coverage in the group or individual market. 14 Such rulemaking shall take into account pay- 15 ments that are made by such plan or issuer, re- 16 spectively, that are not on a fee-for-service 17 basis. Such methodology may account for rel- 18 evant payment adjustments that take into ac- 19 count quality or facility type (including higher 20 acuity settings and the case-mix of various fa- 21 cility types) that are otherwise taken into ac- 22 count for purposes of determining payment 23 amounts with respect to participating facilities. 24 In carrying out clause (iii), the Secretary shall 25 VerDate Sep 11 2014 22:14 Feb 07, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H5800.IH H5800 pamtmann on DSKBC07HB2PROD with BILLS 9 •HR 5800 IH consult with the National Association of Insur- 1 ance Commissioners to establish the geographic 2 regions under such clause and shall periodically 3 update such regions, as appropriate. 4 ‘‘(3) DEFINITIONS.—In this part: 5 ‘‘(A) EMERGENCY DEPARTMENT OF A HOS- 6 PITAL.—The term ‘emergency department of a 7 hospital’ includes a hospital outpatient depart- 8 ment that provides emergency services. 9 ‘‘(B) EMERGENCY MEDICAL CONDITION.— 10 The term ‘emergency medical condition’ means 11 a medical condition manifesting itself by acute 12 symptoms of sufficient severity (including se- 13 vere pain) such that a prudent layperson, who 14 possesses an average knowledge of health and 15 medicine, could reasonably expect the absence 16 of immediate medical attention to result in a 17 condition described in clause (i), (ii), or (iii) of 18 section 1867(e)(1)(A) of the Social Security 19 Act. 20 ‘‘(C) EMERGENCY SERVICES.— 21 ‘‘(i) IN GENERAL.—The term ‘emer- 22 gency services’, with respect to an emer- 23 gency medical condition, means— 24 VerDate Sep 11 2014 22:14 Feb 07, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H5800.IH H5800 pamtmann on DSKBC07HB2PROD with BILLS 10 •HR 5800 IH ‘‘(I) a medical screening exam- 1 ination (as required under section 2 1867 of the Social Security Act, or as 3 would be required under such section 4 if such section applied to an inde- 5 pendent freestanding emergency de- 6 partment) that is within the capability 7 of the emergency department of a hos- 8 pital or of an independent free- 9 standing emergency department, as 10 applicable, including ancillary services 11 routinely available to the emergency 12 department to evaluate such emer- 13 gency medical condition; and 14 ‘‘(II) within the capabilities of 15 the staff and facilities available at the 16 hospital or the independent free- 17 standing emergency department, as 18 applicable, such further medical exam- 19 ination and treatment as are required 20 under section 1867 of such Act, or as 21 would be required under such section 22 if such section applied to an inde- 23 pendent freestanding emergency de- 24 partment, to stabilize the patient. 25 VerDate Sep 11 2014 22:14 Feb 07, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H5800.IH H5800 pamtmann on DSKBC07HB2PROD with BILLS 11 •HR 5800 IH ‘‘(ii) INCLUSION OF CERTAIN SERV- 1 ICES OUTSIDE OF EMERGENCY DEPART- 2 MENT.— 3 ‘‘(I) IN GENERAL.—For purposes 4 of this subsection and section 2799A– 5 1, in the case of an individual enrolled 6 in a group health plan or health in- 7 surance coverage offered by a health 8 insurance issuer in the group or indi- 9 vidual market who is furnished serv- 10 ices described in clause (i) by a par- 11 ticipating or nonparticipating provider 12 or a participating or nonparticipating 13 emergency facility to stabilize such in- 14 dividual with respect to an emergency 15 medical condition, the term ‘emer- 16 gency services’ shall include, unless 17 each of the conditions described in 18 subclause (II) are met, in addition to 19 the items and services described in 20 clause (i), items and services for 21 which benefits are provided or covered 22 under the plan or coverage, respec- 23 tively, furnished by a nonparticipating 24 provider or nonparticipating facility, 25 VerDate Sep 11 2014 22:14 Feb 07, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H5800.IH H5800 pamtmann on DSKBC07HB2PROD with BILLS 12 •HR 5800 IH regardless of the department of the 1 hospital in which such individual is 2 furnished such items or services, if, 3 after such stabilization but during 4 such visit in which such individual is 5 so stabilized, the provider or facility 6 determines that such items or services 7 are needed. 8 ‘‘(II) CONDITIONS.—For pur- 9 poses of subclause (I), the conditions 10 described in this subclause, with re- 11 spect to an individual who is stabilized 12 and furnished additional items and 13 services described in subclause (I) 14 after such stabilization by a provider 15 or facility described in subclause (I), 16 are the following: 17 ‘‘(aa) Such a provider or fa- 18 cility determines such individual 19 is able to travel using nonmedical 20 transportation or nonemergency 21 medical transportation. 22 ‘‘(bb) Such provider fur- 23 nishing such additional items and 24 services satisfies the notice and 25 VerDate Sep 11 2014 22:14 Feb 07, 2020 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H5800.IH H5800 pamtmann on DSKBC07HB2PROD with BILLS 13 •HR 5800 IH consent criteria of section 1 2799A–2(d) with respect to such 2 items and services. 3 ‘‘(cc) Such an individual is 4 in a condition to receive (as de- 5 termined in accordance with 6 guidance issued by the Secretary) 7 the information described in sec- 8 tion 2799A–2 and to provide in- 9 formed consent under such sec- 10 tion, in accordance with applica- 11 ble State law. 12 ‘‘(D) INDEPENDENT FREESTANDING 13 EMERGENCY DEPARTMENT.—The term ‘inde- 14 pendent freestanding emergency department’ 15 means a facility that— 16 ‘‘(i) is geographically separate and 17 distinct and licensed separately from a hos- 18 pital under applicable State law; and 19 ‘‘(ii) provides any emergenc [Text truncated for display. 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