Comparison of Draft Federal "Surprise Billing" Legislation
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Senate Bill (Cassidy/Hassan)
HR 3630 House E&C (Pallone/Walden)
S 1895 Senate HELP (Alexander/Murray)
HR 3502 (Ruiz/Roe)
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total payment for emergency care in all cases and non-emergency care provided at in-network facilities, limited to:median in-network ratemedian of the plans negotiated rates"median contracted rate""the commercially reasonable rate, as determined by the plan or issuer"
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exemption to balance billing ban for emergeny careno exemptionno exemptionno exemptionno exemption
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applies to care at:"hospital or facility" (no specfic definition)hospital, ambulatory surgery center, laboratory, radiology or imaging centerhospitals, hospital outpatient departments, critical access hospitals, ambulatory surgery centers, laboratories, radiology clinics, and any other facility that provides services that are covered under a group health plan or health insurance coverageAny facility that provides services that are covered under a group health plan or health insurance coverage.
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exemption to balance billing ban for non-emergeny care by out-of-network physicians at in-network facilityGenerally there appears to be no exemption process available for non-emergency care provided by an out-of-network physician at an in-network facility. EXCEPT: there is an exemption process for additional care for stabilized patients initially presenting at out-of-network facility for an emergency. Such patients have to be informed of and agree to the charges and be told they can transfer to an in-network facility. Not having an exemption process for non-emergency care generally seems conterintuitive to the aforementioned exemption.There is an exemption process. The patient has to be informed of fees more than 24-hours before the procedure. EXECEPT, "facility-based providers" are ineligible for this process. "Facility-based providers" means emergency medicine providers, anesthesiologists, pathologists, radiologists, neonatologists, assistant surgeons, hospitalists, intensivists, or other providers as determined by the Secretary.Like the Cassidy/Hassan bill there appears to be generally no exemption process except for care to "stabilized patients" subsequent to emergency care.The HELP draft doesn't limit this "stabilized" exception to out-of-network facilities.No-exemption process for ancillary professionals and services and penalties for violations.
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additional transparency provisionsPlans and insurers are obligated to provide estimates of out-of-pocket costs to enrollees on request. Plans and insurers are further require to make available to enrolless, through their website or through an app, price information for services at all sites of care and for all providers included in the plan network.noneProviders and plans both are obligated to provide estimate of cost-sharing amounts within 48-hours of the request. Insurers have to make API access available for: Estimated patient out-of-pocket costs. Prohibits gag clauses that inhibit informing enrollees about "providing provider-specific price or quality of care information." - PBM transparency provisions.minor transparency provisions related to network directories
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reconciliation with state lawState balance billing laws only supersede Federal law if protections provided by State law are greater than Federal law.State balance billing laws override Federal law.except with respect to self-insured group health plans, nothing in this section shall prevent a State from establishing or continuing in effect an alternate method under State law for determining the appropriate compensationState law overrides "so long as such law does not require an individual to pay more in cost-sharing than the amount that would otherwise be required of such individual under this section"
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arbitration processIncludes a binding arbitration process if either plan or provider disagrees with payment received (median in-network rate).No arbitration process [update: an arbitration clause was added on 7/17]No arbitration processbinding arbitration
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penalties for violating law"civil monetary penalty as provided for in this title.""civil money penalty of not more than __" civil monetary penalty of not more than $10,000 for each act constituting such violation. in addition to any other penalties that may be prescribed by law, to a civil money penalty of not more than an amount determined appropriate by the Secretary for each specified claim.
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