Bill H.932

HOUSE DOCKET, NO. 2764 FILED ON: 1/17/2019

HOUSE . . . . . . . . . . . . . . . No. 932

By Mr. Cassidy of Brockton, a petition (accompanied by bill, House, No. 932) of Gerard J. Cassidy, Michael D. Brady and Michelle M. DuBois relative to out of network healthcare insurance billing. Financial Services.

The Commonwealth of Massachusetts

_______________

In the One Hundred and Ninety-First General Court
(2019-2020)

_______________

An Act relative to out of network billing.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:

The General Laws are hereby amended by inserting after chapter 176O the following chapter:

CHAPTER 176O1/2.

Section 1. Definitions

As used in this chapter, the following words shall, unless the context clearly requires otherwise, have the following meanings:-

“Clinician”, a physician licensed under section 2 of chapter 112, or advance practice clinician, including but not limited to a physician assistant licensed pursuant to section 9F of chapter 112, and advanced practice nurses, including but not limited to certified nurse practitioners, certified registered nurse anesthetists, certified nurse midwives, and psychiatric clinical nurse specialists licensed pursuant to section 80B of chapter 112.

“Clinician’s Allowed Amount”, a Clinician’s Usual and Customary Amount after the discount applied under a Clinician’s contractual arrangement with an Insurance Carrier, if any, or the amount of the allowed benefit if the Clinician is Out of Network. The Clinician’s Allowed Amount constitutes the Clinician’s contractually adjusted total expected payment for a professional service if the Clinician has a contractual arrangement with an Insurance Carrier.

“Clinicians’ Usual and Customary Charge”, the charges routinely billed by Clinicians’ for their professional services regardless of payer involved and before any discounts that are applied pursuant to charity or indigent patient charge policies or Insurance Carrier contracting discounts. Absent other considerations, the Usual and Customary Charge constitutes the Clinician’s total expected payment for a service.

''Emergency medical condition'', a medical condition, whether physical, behavioral, related to substance use disorder, or mental, manifesting itself by symptoms of sufficient severity, including severe pain, that the absence of prompt medical attention could reasonably be expected by a prudent layperson who possesses an average knowledge of health and medicine, to result in placing the health of the insured or another person in serious jeopardy, serious impairment to body function or serious dysfunction of any body organ or part or, with respect to a pregnant woman, as further defined in section 1867(e)(1)(B) of the Social Security Act, 42 U. S.C. section 1395dd(e)(1)(B).

“In Network Services”, professional services provided to an Insured by Clinicians who have contracted with the Insurance Carrier that insures the Insured.

“Insurance Carrier”, an insurer licensed or otherwise authorized to transact accident or health insurance under chapter 175; a nonprofit hospital service corporation organized under chapter 176A; a nonprofit medical service corporation organized under chapter 176B; a health maintenance organization organized under chapter 176G; and an organization entering into a preferred provider arrangement under chapter 176I, but not including an employer purchasing coverage or acting on behalf of its employees or the employees of one or more subsidiaries or affiliated corporations of the employer. Unless otherwise noted, the term ''carrier'' shall not include any entity to the extent it offers a policy, certificate or contract that is not a health benefit plan, as defined in section 1 of chapter 176J.

“Insurance Carrier Insured Allowable”, the benefit amount that the Carrier assigns for the service rendered by a Clinician who has not entered into a contractual arrangement with the Insurance Carrier that insures the Insured.

“Insured”, an enrollee, covered person, insured, member, policyholder or subscriber of a carrier, including an individual whose eligibility as an insured of a carrier is in dispute or under review, or any other individual whose care may be subject to review by a utilization review program or entity as described under other provisions of chapter 176O.

“Insured Balance Bill”, the amount of the Clinician’s Usual and Customary Charge that remains after the Insurance Carrier determines the Insurance Carrier Out of Network benefit and Insured Cost Sharing amount.

“Insured Co-Insurance”, the portion of the Clinician’s charge for professional services that the Insured is financially responsible for paying directly to the Clinician who rendered the professional services pursuant to the terms of the contractual arrangement between the Insured and the Insurance Carrier.

“Insured Co-Payment”, the amount that is the Insured’s responsibility for professional services received from a Clinician, as dictated by the terms of the contractual arrangement between the Insured and the Insurance Carrier. A co-pay amount may be stated as a percentage or as a flat rate for services.

“Insured Cost Sharing”, the combination of the Insured Deductible, Co-Insurance and Co-Payment or those amounts that are the responsibility of the Insured for a Clinician’s professional services. Insured Cost Sharing for an Unavoidable Out of Network Services bill shall be limited to the amount that the Insured would have paid the Clinician for In-Network services.

“Insured Deductible”, the Insured’s financial responsibility for the Clinician’s charges that is applied to the Clinician’s Usual and Customary charges before applying either co-insurance or co-payments.

“Mediation”, the process to mediate disputes between an Insurance Carrier and Clinician that is conducted outside of a formal court process; provided, however, that mediation shall only be legally binding if the parties have mutually agreed to it in writing.

“Medicare Physician Fee Schedule”, the fee schedule modified and published annually by the Centers for Medicare and Medicaid for professional services.

“Minimum Benefit Standard”, the greatest of the following amounts: (i) the amount the insured's health care plan would pay for such services if rendered by an in-network health care provider; (ii) the usual and customary rate for such services, or (iii) the amount Medicare would reimburse for such services. As used in this subparagraph, "usual and customary rate" means the eightieth percentile of all charges for the particular health care service performed by a health care provider in the same or similar specialty and provided in the same geographical area, as reported in an independent benchmarking database maintained by a nonprofit organization specified by the Commissioner of the Division of Insurance. Such organization shall not be affiliated with any health carrier.

“Opt Out Services”, Out of Network Clinician Services in an Inpatient Hospital or Outpatient Hospital where the Insured voluntarily selects in writing to receive services from an Out of Network Clinician and is offered an estimate of Out of Network Charges and consents in writing to be treated by an Out of Network Clinician and be financially responsible for Out of Network Services. Opt Out Services shall not include emergency department services and any related on call services provided to an Insured whose care begins in an emergency department.

“Out of Network Services”, a Clinician’s professional services provided to an Insured where the Clinician is not contracted with both the Insured’s Insurance Carrier and the Insured’s health insurance product/plan offered by the Insured’s Insurance Carrier.

"Self-Funded Health Benefits Plan" or "Self-Funded Plan", a self-insured health benefits plan governed by the provisions of the federal "Employee Retirement Income Security Act of 1974," 29 U.S.C. s.1001 et seq.

"Unavoidable Out of Network bill", a bill for Out of Network Services received by an insured for services rendered by a Clinician, where such Out of Network Services were rendered by such out-of-network Clinician at an in-network facility, or during a service or procedure previously approved or authorized by the health carrier and the insured did not have the ability to control to select such services from an in-network Clinician. A bill for Out of Network Services received by an Insured to screen for, evaluate, diagnose and/or treat an emergency medical condition by an out-of-network Clinician at an in-network facility shall be deemed an “Unavoidable Out of Network bill”. "Unavoidable Out of Network bill" does not include a bill for non-emergency services received by an insured when the insured voluntarily selects in writing an out of network Clinician prior to the provision of the service or when the insured has the ability and control to select an in-network Clinician prior to the provision of the service but declines to exercise that option.

Section 2. The Minimum Benefit Standard for Insured Services

(a)If Out of Network Services are provided to an Insured by a Clinician resulting in an Unavoidable Out of Network bill, such Clinician shall bill the Insured’s Insurance Carrier directly and the Insurance Carrier shall pay the Clinician for the professional services as coded and billed by the Clinician;

(b)Insurance Carriers shall make payment directly to the Clinician for an Unavoidable Out of Network bill for covered services within 30 calendar days of the submission of claim by the Clinician;

(c)The Insurance Carrier shall adjudicate the Insured’s claim for Out of Network Services that result in an Unavoidable Out of Network bill at the Insured’s In-Network benefits levels and the Insured’s Cost Sharing for Out of Network Services shall be limited to amount that the Insured would have paid the Clinician for In-Network services;

(d)Insured Deductible for Out of Network services that result in an Unavoidable Out of Network bill shall be applied by the Insurance Carrier to Insured’s Deductible for in-network services;

(e)Insurance Carriers shall make payment directly to the clinician providing Out of Network Services that result in an Unavoidable Out of Network bill at an amount not less than the Minimum Benefit Standard.

(f)Clinicians shall be prohibited from submitting a claim or charges for an Insured Balance Bill for Unavoidable Out of Network services to the Insured, provided that the Minimum Benefit Standard has been paid to the Clinician by the Insurance Carrier and provided that the Insured has not Opted Out of these protections for non-emergency services pursuant to section 3 of this chapter;

(g)In the case of services provided to a member of a Self-Funded Plan that does not elect to be subject to the provisions of this section, the Clinician shall be permitted to bill the covered person in excess of the applicable deductible, copayment, or coinsurance amounts.

Section 3. Opt Out Services

(a)A Clinician shall be prohibited from Insured Balance Billing for Unavoidable Out of Network services, except in the case of Opt Out Services.

(b)If there is a dispute regarding the Involuntary Out of Network service payment or charges the Clinician may institute mediation pursuant to the provisions of this chapter.

Section 4. Mediation

(a)A Clinician may initiate the mediation process by providing written notice of the dispute to the Insurance Carrier and the entity that will determine the mediation process.

(b)Mediation resolution shall be within 30 days of the date the mediation request is received by the Insurance Carrier, and Division of Insurance or its designee shall determine the mediation process.

(c)A Clinician shall be permitted to bundle similar claims or claims presenting common issues of fact or law can be bundled together and adjudicated in one mediation process to promote speedy dispute resolutions.

(d)The mediation official may select from either party’s proposal but shall not create his own reimbursement rate.

(e)The Medicare Physician Fee Schedule shall not be used as a reference point for mediation process as it is a statutory and regulated fee schedule subject to budgetary and policy limitations established by Congress and Center for Medicare and Medicaid Services.

Section 5. False or Misleading Statements in Insurance Carrier Information

An Insurance Carrier shall not state, communicate or include in written form false, misleading or confusing information in their explanation of benefits to Insureds regarding Clinician Usual and Customary Charges, Out of Network Balance Billing, or mediation disputes between Clinicians and Insurance Carriers.

Section 6. Enforcement for non-compliance by Insurance Carriers or Clinicians

(a)A Clinician shall be prohibited from submitting a claim or charges in violation of this chapter.

(b)A Clinician who engages in a pattern and practice of regularly sending or communicating Out of Network Balance Bills to an Insured in violation of these provisions, except for cases of excusable neglect, shall lose the right to file mediation demands under provisions of this chapter.

(c)An Insurance Carrier that is in violation of this chapter is subject to sanctions, penalties and other corrective actions by the Division of Insurance

Section 7. Disclosure

(a)An Insurance Carrier shall inform an Insured or the Insured’s Clinician, as applicable, at the time the Insured or the Insured’s Clinician requests a prospective or concurrent review: (1) the network status under the Insured’s health benefit plan of the Clinician who will be providing the health care service or course of treatment; and (2) an estimate of the amount the Insurance Carrier will pay such Clinician for such service or treatment pursuant to the Minimum Benefit Standard.

(b)At the time of scheduling an admission, procedure or service for an insured patient or prospective patient, a health care provider shall: (i) determine the provider’s own network status relative to insured’s insurance carrier and specific health benefit plan and disclose in real time such network status to the insured.

(c)At the time of scheduling an admission, procedure or service for an insured patient or prospective patient, a health care provider, upon request by a patient or prospective patient, shall (i) notify the patient or prospective patient of their right to request and obtain from the provider provide, based on information available to the provider at the time of the request, additional information on the network status of any provider reasonably expected to render services in the course of such admission, procedure or service that is necessary for the patient’s or prospective patient’s use of a health benefit plan’s toll-free number and website available pursuant to section 23 of chapter 176O to obtain additional information about that provider’s network status under the patient’s or prospective patient’s health benefit plan and any applicable out-of-pocket costs for services sought from such provider; (ii) provide, based on information available to the provider at the time of the request, information on such admission, procedure or service that is necessary for the patient’s or prospective patient’s use of a health benefit plan’s toll-free number and website available pursuant to section 23 of chapter 176O to identify the allowed amount or charge of the admission, procedure or service, including the amount for any facility fees required; (iii) notify the patient or prospective patient that in the event a health care provider is unable to quote a specific allowed amount or charge in advance of the admission, procedure or service due to the health care provider's inability to predict the specific treatment or diagnostic code, the estimated maximum allowed amount or charge for a proposed admission, procedure or service, including the amount for any facility fees required; and (iv) inform the patient or prospective patient that the estimated costs and the actual amount the patient or prospective patient may be responsible to pay may vary due to unforeseen services that arise out of the proposed admission, procedure or service. This subsection shall not apply in cases of emergency services provided to a patient.

(d)If a network provider schedules, orders or otherwise arranges for services related to an insured's admission, procedure or service and such services are performed by another health care provider, or if a network provider refers an insured to another health care provider for an admission, procedure or service, then in addition to the actions required pursuant to subsection

(b) the network provider shall, based on information available to the provider at that time: (i) disclose to the insured if the provider to whom the patient is being referred is part of or represented by the same provider organization registered pursuant to section 11 of chapter 6D;

(ii) disclose verbally or in writing to the insured sufficient information about such provider for the patient to obtain information about that provider's network status under the insured's health benefit plan and identify any applicable out-of-pocket costs for services sought from such provider through the toll-free number and website of the insurance carrier available pursuant to section 23 of chapter O; and (iii) notify verbally or in writing the insured that if the health care provider is out-of-network under the patient's health insurance policy, that the admission, service or procedure will likely be deemed out-of-network and that any out-of-network applicable rates under such policy may apply. This subsection shall not apply in cases of emergency services provided to a patient.

Section 8. Self-Funded Plans

(a)With respect to an entity providing or administering a Self-Funded Health Benefits Plan and its plan members, this Chapter shall only apply if the plan elects to be subject to the provisions of this Chapter. To elect to be subject to the provisions of this Chapter, the self-funded plan shall provide notice, on an annual basis, to the Division of Insurance, on a form and in a manner prescribed by the Division, attesting to the plan's participation and agreeing to be bound by the provisions of this Chapter. The self-funded plan shall amend the employee benefit plan, coverage policies, contracts and any other plan documents to reflect that the benefits of this section shall apply to the plan's members.

(b)An Insurance Carrier, and any other entity providing or administering a Self-Funded Health Benefits Plan that elects to be subject to this Chapter, shall issue a health insurance identification card to the primary insured under a health benefits plan. In a form and manner to be prescribed by the department, the card shall indicate whether the plan is insured or, in the case of self-funded plans that elect to be subject to this Chapter, whether the plan is self-funded and whether the plan elected to be subject to this act.

Name:	District/Address:	Date Added:
Gerard J. Cassidy	9th Plymouth	1/17/2019
Michael D. Brady	Second Plymouth and Bristol	2/1/2019
Michelle M. DuBois	10th Plymouth	2/1/2019