Amendment #33 to H4888

Surprise Billing Provider/Payer Arbitration Model

Mr. Lawn of Watertown moves to amend the bill, as amended, by striking out section 35 in its entirety; and

in section 36, by striking out, in line 747, the words “Sections 32, 34, and 35” and inserting in place thereof the following:- “Sections 32 and 34”; and

by inserting the following sections:-

SECTION XX. Chapter 111 is hereby further amended by striking out section 228, as appearing in the 2016 Official Edition, and inserting in place thereof the following section:-

Section 228. (a) As used in this section, the following words shall, unless the context clearly requires otherwise, have the following meanings:-

“Allowed amount”, the contractually agreed upon amount paid by a carrier to a health care provider for health care services provided to an insured.

“Carrier”, as defined in section 1 of chapter 176O.

“Electronic health record”, as defined in section 1 of chapter 118I.

“Emergency services”, as defined in section 1 of chapter 6D.

“Insured”, as defined in section 1 of chapter 176O.

“Network provider”, as defined in section 1 of chapter 176O.

“Network status”, as defined in section 1 of chapter 176O.

“Out-of-network provider”, as defined in section 1 of chapter 176O.

“Prior written consent”, a written consent form provided to a patient or prospective patient by an out-of-network provider at least 24 hours in advance of the out-of-network provider rendering health care services, other than for emergency services, when said services are scheduled at least 24 hours in advance of the rendering of care, to such patient or prospective patient or, if that person lacks capacity to consent, signed by the person authorized to consent for such a patient or prospective patient. A prior written consent form shall be presented in a manner and format to be determined by the commissioner of public health in consultation with the division of insurance; provided, that such consent form shall be a document that is separate from any other document used to obtain the consent of the patient or prospective patient for any other part of the care or procedure; and provided further, that such consent form shall include: (i) a statement affirming that the out-of-network provider has disclosed its out-of-network status to the patient or prospective patient; (ii) a statement affirming that the out-of-network provider informed the patient or prospective patient that services rendered by an out-of-network provider may result in costs not covered by the patient’s or prospective patient’s carrier or specific health benefit plan; (iii) a statement affirming that the out-of-network provider informed the patient or prospective patient that services may be available from a contracted provider and that the patient or prospective patient is not required to obtain care from the out-of-network provider; (iv) a statement affirming that the out-of-network provider presented the patient or prospective patient with a written estimate of the patient or prospective patient’s total out-of-pocket cost of care for the admission, service or procedure; and (v) an affirmative declaration of the patient’s or prospective patient’s consent to receive health care services from the out-of-network provider, signed by the patient or prospective patient, or by the person authorized to consent for such a patient or prospective patient. A signature submitted through a patient’s electronic health record shall be considered an affirmative declaration of consent.

(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, to the best of their ability, 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; (ii) direct the patient or prospective patient to their health benefit plan’s toll-free number and website available pursuant to section 23 of chapter 176O to determine a provider’s network status under the patient’s or prospective patient’s health benefit plan; (iii) disclose within 2 working days the allowed amount or charge of the admission, procedure or service, provided, however, that if a health care provider is unable to quote a specific amount in advance due to the health care provider's inability to predict the specific treatment or diagnostic code, the health care provider shall disclose the estimated maximum allowed amount or charge for a proposed admission, procedure or service; and (iv) upon request of a patient or prospective patient, provide, based on the information available to the provider at the time of the request, sufficient information regarding the proposed admission, procedure or service for the patient or prospective patient to use the applicable toll-free telephone number and website of the health plan established to disclose out-of-pocket costs, under section 23 of chapter 176O. A health care provider may assist a patient or prospective patient in using the health plan's toll-free number and website. This subsection shall not apply in cases of emergency services provided to a patient or to unforeseen medical circumstances that arise at the time the health care services are rendered.

(c) 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, to the best of their ability, if the provider to whom the patient is being referred  is part of or represented by the same provider organization as defined by section 11 of chapter 6D; (ii) disclose 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 176O; and (iii) notify 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 or to unforeseen medical circumstances that arise at the time the health care services are rendered.

(d) Upon initial encounter with a patient at the time of scheduling an admission, procedure or service for an insured patient or prospective patient, an out-of-network provider shall, in addition to the actions required pursuant to subsection (b) and at least 24 hours in advance of care, when said care is scheduled at least 24 hours in advance of rendering the services: (i) disclose to the insured that the provider does not participle in the insured’s health benefit plan network; (ii) provide the insured with the estimated or maximum charge that the provider will bill the insured for the admission, procedure or service if rendered as an out-of-network service; (iii) inform the patient or prospective patient that additional information on applicable out-of-pocket costs for out-of-network services may be obtained through the toll-free number and website of the insurance carrier available pursuant to section 23 of chapter 176O; and (iv) obtain the prior written consent of such patient or prospective patient in advance of the out-of-network provider rendering health care services. This subsection shall not apply in cases of emergency services provided to a patient or to unforeseen medical circumstances that arise at the time the health care services are rendered.

SECTION XX. Section 5 of chapter 176G of the General Laws, as appearing in the 2016 Official Edition, is hereby amended by striking out subsection (f) and inserting in place thereof the following subsection:-

(f) Pursuant to sections 28 and 29 of chapter 176O, a health maintenance organization shall provide or arrange for indemnity payments to a member or provide for the cost of emergency medical services by a provider who is not normally affiliated with the health maintenance organization when the member requires services for an emergency medical condition.

SECTION XX. Section 3 of chapter 176I of the General Laws, as appearing in the 2016 Official Edition, is hereby amended by striking out subsection (b) and inserting in place thereof the following subsection:-

(b) If a covered person receives emergency care and cannot reasonably reach a preferred provider, payment for care related to the emergency shall be made pursuant to sections 28 and 29 of chapter 176O and shall be made at the same level and in the same manner as if the covered person had been treated by a preferred provider; provided however, that every brochure, contract, policy manual and all printed materials shall clearly state that covered persons shall have the option of calling the local pre-hospital emergency medical service system by dialing the emergency telephone access number 911, or its local equivalent, whenever a covered person is confronted with a need for emergency care, and no covered person shall in any way be discouraged from using the local pre-hospital emergency medical service system, the 911 telephone number, or the local equivalent, or be denied coverage for medical and transportation expenses incurred as a result of such use of emergency care;

SECTION XX. Section 1 of chapter 176O of the General Laws, as appearing in the 2016 Official Edition, is hereby amended by inserting after the definition of “Adverse determination” the following definition:-

“Allowed amount”, the contractually agreed upon amount paid by a carrier to a health care provider for health care services provided to an insured.

SECTION XX. Said section 1 of chapter 176O, as so appearing, is hereby amended by inserting after the definition of “Emergency medical condition” the following definition:-

''Emergency services'', as defined under section 1 of chapter 6D.

SECTION XX. Said section 1 of said chapter 176O, as so appearing, is hereby further amended by inserting after the definition of “Network” the following 2 definitions:-

“Network provider”, a participating provider who, under a contract with the carrier or with its contractor or subcontractor, has agreed to provide health care services to insureds enrolled in any or all of the carrier's network plans, policies, contracts or other arrangements.

“Network status”, a designation to distinguish between a network provider and an out-of-network provider.

SECTION XX. Said section 1 of said chapter 176O, as so appearing, is hereby further amended by inserting after the definition of “Office of patient protection” the following definition:-

“Out-of-network provider”, a health care professional or facility, other than a person licensed under chapter 111C, that does not participate in the network of an insured’s health benefit plan because: (i) the health care professional or facility contracts with a carrier to participate in the carrier’s network but does not contract as a participating provider for the specific health benefit plan to which an insured is enrolled; or (ii) the health care professional or facility does not contract with a carrier to participate in any of the carrier's network plans, policies, contracts or other arrangements.

SECTION XX. Said section 1 of said chapter 176O, as so appearing, is hereby further amended by inserting after the definition of “Second opinion” the following definition:-

“Surprise bill”, a bill for covered health care services received by an insured for services delivered by an out-of-network provider where: (i) an insured receives emergency services and cannot reasonably reach a network facility or is delivered by ambulance to an out-of-network facility; (ii) an insured receives emergency services at a network facility that requires medically  necessary services that can only be provided by an out-of-network health care professional; (iii) a network provider is unavailable; (iv) an out-of-network health care professional renders services in a network facility without the insured’s knowledge; (v) services were referred by a network provider to an out-of-network provider without the prior written consent of the insured acknowledging the out-of-network referral or services and that such services rendered may result in costs not covered by the health benefit plan; or (vi) unforeseen medical circumstances that arise at the time the health care services are rendered that require that necessary services be performed by an out-of-network provider; provided however, that “surprise bill” shall not mean a bill received for health care services rendered when a network provider is available and the insured affirmatively elected to receive services from an out-of-network provider.

SECTION XX. Section 6 of said chapter 176O, as amended by section 43 of chapter 228 of the acts of 2018, is hereby amended by striking out, in lines 28 and 29, the words “has a reasonable opportunity to choose to have the service performed by a network provider” and inserting in place thereof the following words:- affirmatively chooses to receive services from an out-of-network provider pursuant to section 28 and the out-of-network provider has obtained the prior written consent of the insured pursuant to section 228 of chapter 111.

SECTION XX. Said chapter 176O is hereby further amended by striking out section 23, as so appearing, and inserting in place thereof the following section:-

Section 23. All carriers shall establish a toll-free telephone number and website that enables consumers to request and obtain from the carrier, in real time, the network status of an identified health care provider and the estimated or maximum allowed amount or charge for a proposed admission, procedure or service, and the estimated amount the insured will be responsible to pay for a proposed admission, procedure or service that is a medically necessary covered benefit, based on the information available to the carrier at the time the request is made, including any copayment, deductible, coinsurance or other out of pocket amount for any covered health care benefits. All carriers shall create a mechanism by which the insured can request notice of the estimated amount in writing. Upon request, the carrier shall send the consumer written notice of the estimated amount the insured will be responsible for paying.

The telephone number and website shall inform the insured that the insured shall not be required to pay more than the estimated amounts disclosed in the written notice for the covered health care benefits that were actually provided; provided however, that nothing in this section shall prevent carriers from imposing cost sharing requirements disclosed in the insured's evidence of coverage document provided by the carrier for unforeseen services that arise out of the proposed admission, procedure or service; and provided further, that the carrier shall alert the insured that these are estimated costs, and that the actual amount the insured will be responsible to pay may vary due to unforeseen services that arise out of the proposed admission, procedure or service, except that the insured shall not be responsible for any additional payment caused by the carrier mistakenly identifying an out-of-network provider as in-network.

SECTION XX. Said chapter 176O of the General Laws is hereby further amended by adding the following 2 sections:-

Section 28. (a) When an out-of-network provider renders services to an insured, the provider shall: (i) not bill the insured for any amount except for any cost sharing amount owed for such service or services under the terms of the insured’s health benefit plan had the services been delivered by an in-network provider; and (ii) bill the insured’s carrier for the health care services rendered. The carrier shall pay the out-of-network provider the billed amount or attempt to negotiate reimbursement with the out-of-network provider.

(b) If the carrier’s attempts to negotiate reimbursement for health care services provided by an out-of-network provider does not result in a resolution of the payment dispute between the out-of-network provider and the carrier, the carrier shall pay the out-of-network provider an amount the carrier determines is reasonable for the health care services rendered, except for any cost sharing amount owed for such service or services under the terms of the insured’s health benefit plan had the services been delivered by an in-network provider.

(c) The carrier or the out-of-network provider may submit a dispute regarding a surprise bill for review to an independent dispute resolution entity established under section 29, provided that the carrier may not submit a dispute for review unless it has complied with the requirements of subsections (a) and (b) of this section.

(d) An insured shall not be liable for the payment of surprise bills and shall pay no more than any cost sharing amount owed for such service or services under the terms of the insured’s health benefit plan had the services been delivered by an in-network provider if: (i) an insured receives emergency services from an out-of-network provider; (ii) an insured receives covered services from a network provider and as a result or in conjunction with such services receives services provided by an out-of-network provider; or (iii) when a referral or preauthorization is required under the insured’s health benefit plan, a network provider refers an insured to an out-of-network provider without the explicit written consent of the insured acknowledging that the provider is referring the insured to an out-of-network provider and that the referral may result in costs not covered by the health plan.

(e) At the time of payment by a carrier to an out-of-network provider, a carrier shall inform the insured and the out-of-network provider of the in-network cost-sharing amount owed by the insured.

(f) If a carrier delegates payment functions to a contracted entity, including, but not limited to, a medical group or independent practice association, the delegated entity shall comply with this section.

(g) Nothing in this section shall require a carrier to pay for non-emergency health care services delivered to an insured that are not covered benefits under the terms of the insured’s health benefit plan.

Section 29. (a) The division, in consultation with the center for health information and analysis, shall establish an efficient and simple dispute resolution process by which a dispute for a surprise bill may be resolved. The division shall have the power to grant and revoke certifications of independent dispute resolution entities to conduct the dispute resolution process. The division shall promulgate regulations establishing standards for the dispute resolution process, including a process for certifying and selecting independent dispute resolution entities and a reasonable fee for the services rendered by the independent dispute resolution entities. A member of a self-insured group as defined by section 21 of this chapter shall be eligible to submit a dispute for determination by the independent dispute resolution entity.

(b) In the event of a dispute between the out-of-network provider and the carrier as to the amount to be reimbursed under section 28, the independent dispute resolution entity certified by the division shall (i) make a determination within 30 days of receipt of the dispute for review; and (ii) select either: (A) the fee request of the out-of-network provider; or (B) the carrier's payment.

(c) If the independent dispute resolution entity determines, based on the carrier's payment and the out-of-network provider’s fee request, that a settlement between the carrier and out-of-network provider is reasonably likely, or that both the carrier's payment and the out-of-network provider’s fee request represent unreasonable extremes, then the independent dispute resolution entity may direct both parties to attempt a good-faith arbitration for settlement. The carrier and the out-of-network provider may be granted up to 10 business days for this arbitration, which shall run concurrently with the 30 day period for dispute resolution.

(d) The determination of the independent dispute resolution entity shall be binding on the carrier and the out-of-network provider and shall be admissible in any court or administrative proceedings. Out-of-network providers shall not seek any payment in excess of the independent dispute resolution determination from an insured or a facility in which an out-of-network health care professional is employed.

(e) Payment to the independent dispute resolution entity shall be as follows: (i) for disputes involving a carrier and an out-of-network provider, when the independent dispute resolution entity determines that the health care plan’s payment is reasonable, payment for the dispute resolution process shall be the responsibility of the out-of-network provider; (ii) when the independent dispute resolution entity determines that the out-of-network provider’s fee request is reasonable, payment for the dispute resolution process shall be the responsibility of the carrier; or (iii) agreed upon during course of negotiation pursuant to subsection (c).

(f) The independent dispute resolution entity shall submit an annual report to the division detailing the disputes submitted for determination by the entity in the previous calendar year. The report shall include but not be limited to: (i) the total number of disputes submitted for determination; (ii) the frequency of disputes submitted for determination and deemed ineligible; (iii) the frequency of dispute submissions by carriers, out-of-network facilities, and out-of-network health care professionals; (iv) the frequency of health care services or current procedural terminology codes submitted for determination; (v) the frequency in which the entity selects a carrier’s payment, the fee request of an out-of-network facility, or the fee request of an out-of-network health care professional; (vi) the frequency of split decisions, or when more than one current procedural terminology code is submitted in a dispute and the entity rules in favor of multiple parties; (vii) the frequency of settlements reached through good-faith arbitration; and (viii) the frequency of disputes submitted for determination by region or county. The report shall be used by the division to monitor the adequacy of carrier networks.

Additional co-sponsor(s) added to Amendment #33 to H4888

Surprise Billing Provider/Payer Arbitration Model