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2020 Regular Session
SENATE BILL NO. 262
BY SENATOR TALBOT
HEALTH/ACC INSURANCE. Provides relative to balance or "surprise" billing. (8/1/20)
1 AN ACT
2 To enact R.S. 22:1828 and Subpart E of Part II of Chapter 6 of Title 22 of the Louisiana
3 Revised Statutes of 1950, to be comprised of R.S. 22:1885.1 through 1885.8, relative
4 to health insurance; to provide for assignment of benefits; to provide for definitions;
5 to provide for an independent arbitration process for the resolution of payment
6 disputes between health insurance issuers and certain healthcare providers; to
7 provide for applicability; to provide for hold harmless provisions; to provide for
8 criteria to be used by an independent dispute resolution entity; to provide for
9 rulemaking; and to provide for related matters.
10 Be it enacted by the Legislature of Louisiana:
11 Section 1. R.S. 22:1828 and Subpart E of Part II of Chapter 6 of Title 22 of the
12 Louisiana Revised Statutes of 1950, comprised of R.S. 22:1885.1 through 1885.8, are hereby
13 enacted to read as follows:
14 §1828. Assignment of benefits
15 A. For purposes of this Section:
16 (1) "Healthcare provider" means:
17 (a) A physician or other healthcare practitioner licensed, certified, or
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1 registered to perform specified healthcare services consistent with state law who
2 provides services in accordance with the provisions of the insurance contract,
3 policy, subscriber agreement, certificate of coverage, or other evidence of health
4 insurance coverage.
5 (b) A facility or institution providing healthcare services, including but
6 not limited to a hospital or other licensed inpatient center; an ambulatory,
7 surgical, or treatment center; a skilled nursing facility; an inpatient hospice
8 facility; a residential treatment center; a diagnostic, laboratory, or imaging
9 center; or a rehabilitation or other therapeutic health setting.
10 (2) "Health insurance coverage" means benefits consisting of medical
11 care provided or arranged for directly through insurance, reimbursement, or
12 otherwise, and including items and services paid for as medical care under any
13 hospital or medical service policy or certificate, hospital or medical service plan
14 contract, preferred provider organization agreement, or health maintenance
15 organization contract offered by a health insurance issuer.
16 (3) "Health insurance issuer" means any entity that offers health
17 insurance coverage through a policy or certificate of insurance subject to state
18 law that regulates the business of insurance. For purposes of this Section, a
19 "health insurance issuer" includes a health maintenance organization as defined
20 and licensed pursuant to Subpart I of Part I of Chapter 2 of this Title,
21 nonfederal government plans subject to the provisions of Subpart B of this Part,
22 and the Office of Group Benefits.
23 B.(1) Notwithstanding any other provision of law to the contrary, an
24 insured, beneficiary, subscriber, or enrollee shall have the right to assign in
25 writing any benefits payable under health insurance coverage, including any
26 legal or contractual rights flowing from the coverage, to a healthcare provider
27 who files claims with a health insurance issuer for medical services provided to
28 the insured, beneficiary, subscriber, or enrollee. A health insurance issuer shall
29 recognize an assignment of benefits to a healthcare provider by an insured,
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1 beneficiary, subscriber, or enrollee and shall not include any language or
2 provisions prohibiting an assignment in any form, contract, policy, subscriber
3 agreement, certificate of coverage, or other evidence of health insurance
4 coverage.
5 (2) Any payment made only to the insured, beneficiary, subscriber, or
6 enrollee rather than the healthcare provider after assignment of benefits has
7 been made as provided for in Paragraph (1) of this Subsection shall be
8 considered unpaid.
9 (3) An insurance contract, policy, subscriber agreement, certificate of
10 coverage, or other evidence of health insurance coverage shall not prohibit, and
11 claims forms shall provide an option for, the payment of benefits directly to a
12 healthcare provider who provides medical services in accordance with the
13 provisions of the insurance contract, policy, subscriber agreement, certificate
14 of coverage, or other evidence of health insurance coverage for care provided.
15 (4) The department shall develop and make available on the
16 department's website a standard form that shall be accepted by any health
17 insurance issuer and that may be executed by an insured to effectuate an
18 assignment of benefits to a healthcare provider.
19 Section 2. Subpart D-1 of Part 2 of Chapter 6 of Title 22 of the Louisiana Revised
20 Statutes of 1950, comprised of R.S. 22:1885.1 through 1885.8, is hereby enacted to read as
21 follows:
22 SUBPART E. NO SURPRISES IN HEALTH INSURANCE COVERAG E ACT
23 §1885.1. Title
24 This Subpart shall be known and may be cited as the "No Surprises in
25 Health Insurance Act of 2020".
26 §1885.2. Definitions
27 For the purposes of this Subpart:
28 (1) "Commissioner" means the commissioner of insurance.
29 (2) "Department" means the Louisiana Department of Insurance.
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1 (3) "Emergency condition" means a medical or behavioral condition that
2 manifests itself by acute symptoms of sufficient severity, including severe pain,
3 that a prudent layperson, possessing an average knowledge of medicine and
4 health, would reasonably expect the absence of immediate medical attention to
5 result in any of the following:
6 (a) Placing the health of the person afflicted with the condition in serious
7 jeopardy, or in the case of a behavioral condition placing the health of the
8 person or others in serious jeopardy.
9 (b) Serious impairment to the person's bodily functions.
10 (c) Serious dysfunction of any bodily organ or part of the person.
11 (d) Serious disfigurement of the person.
12 (e) A condition described in clause (i), (ii) or (iii) of Section 1867(e)(1)(A)
13 of the Social Security Act, 42 U.S.C. Section 1395dd.
14 (4) "Emergency services" means, with respect to an emergency condition
15 that requires a medical screening examination as required under Section 1867
16 of the Social Security Act, 42 U.S.C. Section 1395dd, which is within the
17 capability of the emergency department of a hospital, including ancillary
18 services routinely available to the emergency department to evaluate the
19 emergency medical condition and within the capabilities of the staff and
20 facilities available at the hospital, such further medical examination and
21 treatment as are required under Section 1867 of the Social Security Act, 42
22 U.S.C. Section 1395dd, to stabilize the patient.
23 (5) "Health insurance coverage" means benefits consisting of medical
24 care provided or arranged for directly through insurance, reimbursement, or
25 otherwise, and including items and services paid for as medical care under any
26 hospital or medical service policy or certificate, hospital or medical service plan
27 contract, preferred provider organization agreement, or health maintenance
28 organization contract offered by a health insurance issuer.
29 (6) "Health insurance issuer" means any entity that offers health
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1 insurance coverage through a policy or certificate of insurance subject to state
2 law that regulates the business of insurance. For purposes of this Subpart, a
3 "health insurance issuer" shall include a health maintenance organization, as
4 defined and licensed pursuant to Subpart I of Part I of Chapter 2 of this Title,
5 nonfederal government plans subject to the provisions of Subpart B of this Part,
6 and the Office of Group Benefits.
7 (7) "Insured" means a patient covered under a health insurance issuer's
8 policy or contract.
9 (8) "Nonparticipating" means not having a contract with a health
10 insurance issuer to provide healthcare services to an insured.
11 (9) "Participating" means having a contract with a health insurance
12 issuer to provide healthcare services to an insured.
13 (10) "Patient" means a person who receives healthcare services,
14 including emergency services, in this state.
15 (11) "Surprise bill" means a bill for healthcare services, other than
16 emergency services, received by any of the following:
17 (a) An insured who receives a bill for services rendered by a
18 nonparticipating physician at a participating hospital or ambulatory surgical
19 center, where a participating physician is unavailable or a nonparticipating
20 physician renders services without the insured's knowledge or the need for
21 unforeseen medical services arises at the time the healthcare services are
22 rendered; provided, however, that a surprise bill shall not mean a bill received
23 for healthcare services when a participating physician is available and the
24 insured has elected to obtain services from a nonparticipating physician.
25 (b) An insured who receives a bill for services rendered by a
26 nonparticipating provider, when the insured was referred by a participating
27 physician to a nonparticipating provider for services without explicit written
28 consent of the insured acknowledging that the participating physician referred
29 the insured to a nonparticipating provider and that the referral may have
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1 resulted in costs not covered by the healthcare plan.
2 (12) "Usual and customary cost" means the eightieth percentile of all
3 charges for the particular healthcare service performed by a provider in the
4 same or similar specialty and provided in the same geographical area as
5 reported in a benchmarking database maintained by a nonprofit organization
6 specified by the commissioner of insurance. The nonprofit organization shall
7 not be affiliated with any health insurance issuer.
8 §1885.3. Dispute resolution process established
9 The department shall establish a dispute resolution process by which a
10 dispute for a bill for emergency services or a surprise bill may be resolved in
11 accordance with the provisions of this Subpart. The department shall have the
12 power to grant and revoke certifications of independent dispute resolution
13 entities to administer the dispute resolution process. The department shall
14 promulgate regulations establishing standards and procedures for the
15 submission and resolution of payment disputes to an independent dispute
16 resolution entity including but not limited to a process for certifying and
17 selecting independent dispute resolution entities that shall include provisions
18 related to conflicts of interest.
19 §1885.4. Applicability
20 A. The provisions of this Subpart shall not apply to healthcare services,
21 including emergency services, with physician fees subject to schedules or other
22 monetary limitations under any other law, including but not limited to workers'
23 compensation, Medicaid, or Medicare or to health insurance plans that are
24 subject to the Employee Retirement Income Security Act of 1974, and shall not
25 preempt any such law.
26 B.(1) With regard to emergency services billed under American Medical
27 Association Current Procedural Terminology codes 99281 through 99285,
28 99288, 99291 through 99292, 99217 through 99220, 99224 through 99226, and
29 99234 through 99236, the dispute resolution process established in this Section
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1 shall not apply when all the following criteria are met:
2 (a) The amount billed under a Current Procedural Terminology code
3 meets the requirements set forth in Paragraph (3) of this Subsection, after any
4 applicable coinsurance, copayment, and deductible.
5 (b) The amount billed under a Current Procedural Terminology code
6 does not exceed one hundred twenty percent of the usual and customary cost for
7 the Current Procedural Terminology code.
8 (2) The healthcare plan shall ensure that an insured shall not incur any
9 greater out-of-pocket costs for emergency services billed under a Current
10 Procedural Terminology code as set forth in this Subsection than the insured
11 would have incurred if the emergency services were provided by a participating
12 physician.
13 (3) No later than January first each year, the department shall publish
14 on a website maintained by the department and provide in writing to each
15 healthcare plan, a threshold dollar amount below which bills for the procedure
16 codes identified in this Section shall be exempt from the dispute resolution
17 process established in this Section. The threshold amount shall equal the
18 amount from the prior year, beginning with six hundred fifty dollars, adjusted
19 by the average of the annual average inflation rates for the medical care
20 commodities and medical care services components of the consumer price index
21 for the twelve month period ending September thirtieth of the prior year. In no
22 event shall the threshold amount exceed one thousand two hundred dollars.
23 C.(1) Within three business days of receipt by the department of an
24 application submitted by a healthcare plan, nonparticipating physician, or an
25 insured who has not executed an assignment of benefits, the department shall
26 screen the application to determine whether the bill for emergency services or
27 the surprise bill is subject to the provisions of this Subpart.
28 (2) If the department determines the provisions of this Subpart do not
29 apply to the bill for emergency services or the surprise bill, the application shall
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1 be rejected and returned to the party who submitted the application.
2 (3) If the department determines that the provisions of the Subpart
3 apply to the bill for emergency services or the surprise bill, the department shall
4 select an independent dispute resolution entity to resolve the dispute and
5 forward the application to the independent dispute resolution entity within
6 three business days of making the determination.
7 §1885.5. Dispute resolution for emergency services and surprise bills
8 A.(1) When a health insurance issuer receives a bill for emergency
9 services or a surprise bill with an assignment of benefits from a
10 nonparticipating physician, the health insurance issuer shall:
11 (a) Pay the nonparticipating physician the billed amount or attempt to
12 negotiate reimbursement with the nonparticipating physician or
13 nonparticipating referred healthcare provider. If the healthcare plan's attempts
14 to negotiate reimbursement for the healthcare services provided by the
15 nonparticipating physician do not result in a resolution of the payment dispute,
16 the healthcare plan shall pay the nonparticipating physician an amount the
17 healthcare plan determines is reasonable for the healthcare services rendered,
18 less the insured's copayment, coinsurance, or deductible. The payment shall be
19 made in accordance with the timeframes established in Subpart B of Part II of
20 Chapter 6 of this Title.
21 (b) Provide notice to the nonparticipating physician of the process for
22 initiating the independent dispute resolution process.
23 (c) Ensure that the insured shall incur no greater out-of-pocket costs for
24 the emergency services than the insured would have incurred with a
25 participating physician pursuant to the insured's health insurance coverage.
26 (2) A nonparticipating physician or a health insurance issuer may submit
27 an application to the department to request resolution of a dispute regarding a
28 fee or payment for emergency services or a surprise bill by an independent
29 dispute resolution entity, provided however, the health insurance issuer shall
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1 not submit the dispute unless it has complied with the requirements of this
2 Subsection.
3 (3) In determining a reasonable fee for the services rendered, an
4 independent dispute resolution entity shall select either the healthcare plan's
5 payment or the nonparticipating physician's fee. The independent dispute
6 resolution entity shall determine which amount to select based upon the
7 conditions and factors provided in R.S. 22:1885.6. If an independent dispute
8 resolution entity determines, based on the health insurance issuer's payment
9 and the nonparticipating physician's fee, that a settlement between the health
10 insurance issuer and nonparticipating physician is reasonably likely, or that
11 both the health insurance issuer's payment and the nonparticipating physician's
12 fee represent unreasonable extremes, then the independent dispute resolution
13 entity may direct both parties to attempt a good faith negotiation for settlement.
14 The health insurance issuer and nonparticipating physician may be granted up
15 to ten business days for this negotiation. This ten-day period shall run
16 concurrently with the thirty-day period for dispute resolution.
17 (4) The determination of an independent dispute resolution entity shall
18 be binding on the health insurance issuer, physician, and patient, and shall be
19 admissible in any court proceeding between the health insurance issuer,
20 physician, or patient, or in any administrative proceeding between this state and
21 the physician.
22 (5) If the independent dispute resolution entity issues a determination in
23 favor of the nonparticipating physician, the health insurance issuer shall pay the
24 nonparticipating physician any additional amount owed within thirty days of
25 the date of the determination.
26 B.(1) An insured who does not assign benefits in accordance with
27 Subsection A of this Section and who receives a surprise bill may submit an
28 application to the department to request resolution of the dispute regarding a
29 fee or payment for a surprise bill by an independent dispute resolution entity.
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1 The independent dispute resolution entity shall make a determination pursuant
2 to the provisions of this Subpart.
3 (2) The independent dispute resolution entity shall determine a
4 reasonable fee for the services rendered based upon the conditions and factors
5 provided in R.S. 22:1885.6.
6 (3) The independent dispute resolution entity shall make a determination
7 within thirty days of receipt of the dispute for review.
8 (4) A patient or insured who does not assign benefits in accordance with
9 Subsection A of this Section shall not be required to pay the physician's fee to
10 be eligible to submit the dispute for review to the independent dispute entity.
11 (5) The determination of an independent dispute resolution entity shall
12 be binding on the patient, physician, and health insurance issuer, and shall be
13 admissible in any court proceeding between the patient or insured, physician,
14 or healthcare plan, or in any administrative proceeding between this state and
15 the physician.
16 §1885.6. Hold harmless; assignment of benefits for surprise bills for insureds
17 When an insured assigns benefits for a surprise bill in writing to a
18 nonparticipating physician who knows the assigner is insured under health
19 insurance coverage, the nonparticipating physician shall not bill the insured
20 except for any applicable copayment, coinsurance, or deductible that would be
21 owed if the insured utilized a participating physician.
22 §1885.7. Criteria for determining a reasonable fee
23 In determining the appropriate amount to be paid for a healthcare
24 service, an independent dispute resolution entity shall consider all relevant
25 factors, including:
26 (1) Whether there is a gross disparity between the fee charged by the
27 physician for services rendered as compared to:
28 (a) Fees paid to the involved physician for the same services rendered
29 by the physician to other patients in healthcare plans in which the physician is
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1 not participating.
2 (b) In the case of a dispute involving a healthcare plan, fees paid by the
3 healthcare plan to reimburse similarly qualified physicians for the same services
4 in the same region who are not participating with the healthcare plan.
5 (2) The level of training, education, and experience of the physician.
6 (3) The physician's usual charge for comparable services with regard to
7 patients in healthcare plans in which the physician is not participating.
8 (4) The circumstances and complexity of the particular case, including
9 time and place of the service delivery.
10 (5) Individual patient characteristics.
11 (6) The usual and customary cost of the service.
12 §1885.8. Payment for independent dispute resolution entity
13 When the independent dispute resolution entity determines the health
14 insurance issuer's payment is reasonable, payment for the dispute resolution
15 process shall be the responsibility of the nonparticipating physician. When the
16 independent dispute resolution entity determines the nonparticipating
17 physician's fee is reasonable, payment for the dispute resolution process shall
18 be the responsibility of the health insurance issuer. When a good faith
19 negotiation directed by the independent dispute resolution entity pursuant this
20 Subpart results in a settlement between the health insurance issuer and
21 nonparticipating physician, the health insurance issuer and the nonparticipating
22 physician shall evenly divide and share the prorated cost for dispute resolution.
The original instrument and the following digest, which constitutes no part
of the legislative instrument, were prepared by Cheryl B. Cooper.
DIGEST
SB 262 Original 2020 Regular Session Talbot
Proposed law provides that an insured shall have the right to assign, in writing, any benefits
payable under health insurance coverage, including any legal or contractual rights flowing
from such coverage, to a healthcare provider who files claims with a health insurance issuer
for medical services provided to the insured, beneficiary, subscriber, or enrollee.
Proposed law requires that a health insurance issuer recognize any such assignment of
benefits to a healthcare provider and shall not include any language or provisions prohibiting
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any such assignment in any form, contract, policy, subscriber agreement, certificate of
coverage, or other evidence of health insurance coverage.
Proposed law provides that an insurance contract or other evidence of health insurance
coverage shall not prohibit, and claims forms shall provide an option for the payment of
benefits directly to a licensed hospital, licensed ambulance provider, physician, dentist, or
other healthcare provider who provided the medical services in accordance with the
provisions the insurance contract for care provided.
Proposed law establishes a dispute resolution process by which a dispute for a bill for
emergency services or a surprise bill may be resolved. Grants the Louisiana Department of
Insurance the power to accept certifications of independent dispute resolution entities to
conduct the dispute resolution process.
Proposed law excludes healthcare services, including emergency services, where physician
fees are subject to schedules or other monetary limitations under any other law, including,
but not limited to, workers' compensation, Medicaid, Medicare, or to health insurance plans
that are subject to the Employee Retirement Income Security Act of 1974 from the
provisions of the proposed law.
Proposed law excludes from the provisions of the proposed law certain emergency services
billed under the American Medical Association Current Procedural Terminology codes
99281 through 99285, 99288, 99291 through 99292, 99217 through 99220, 99224 through
99226, and 99234 through 99236, when all the following criteria are met:
(1)The amount billed for any Current Procedural Terminology code is less than a
threshold amount that shall equal the amount from the prior year, beginning with six
hundred fifty dollars, adjusted by the average of the annual average inflation rates
for the medical care commodities and medical care services components of the
consumer price index. In no event shall the threshold amount exceed $1,200.
(2)The amount billed for any such Current Procedural Terminology code does not
exceed 120% of the usual and customary cost for such Current Procedural
Terminology code.
Proposed law provides that when a health insurance issuer receives a bill for emergency
services or a surprise bill with an assignment of benefits from a non-participating physician,
the health insurance issuer shall:
(1)Pay the nonparticipating physician the billed amount or attempt to negotiate
reimbursement with the nonparticipating physician. If the healthcare plan's attempts
to negotiate reimbursement for the healthcare services provided by the
nonparticipating physician do not result in a resolution of the payment dispute, the
healthcare plan shall pay the nonparticipating physician an amount the healthcare
plan determines is reasonable for the healthcare services rendered, less the insured's
copayment, coinsurance, or deductible.
(2)Provide notice to the nonparticipating physician describing how to initiate the
independent dispute resolution process.
(3)Ensure that the insured shall incur no greater out-of-pocket costs for the emergency
services than the insured would have incurred with a participating physician pursuant
to the insured's health insurance coverage.
Proposed law provides that in determining a reasonable fee for the services rendered, an
independent dispute resolution entity shall select either the healthcare plan's payment or the
nonparticipating physician's fee. The independent dispute resolution entity shall determine
which amount to select based upon the conditions and factors set forth in proposed law.
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Proposed law provides that if the independent dispute resolution entity issues a
determination in favor of the nonparticipating physician, the health insurance issuer shall pay
the nonparticipating physician any additional amount owed within thirty days from the date
of the determination.
Proposed law provides that if an insured who does not assign benefits receives a surprise bill,
the insured may submit an application to the department to request resolution of the dispute
regarding a fee or payment for a surprise bill by an independent dispute resolution entity.
The independent dispute resolution entity shall make a determination pursuant to the
provisions of proposed law.
Proposed law provides that the determination of an independent dispute resolution entity
shall be binding on the health insurance issuer, physician and patient, and shall be admissible
in any court proceeding between the health insurance issuer, physician or patient, or in any
administrative proceeding between this state and the physician.
Proposed law provides that when an insured assigns benefits for a surprise bill in writing to
a nonparticipating physician that knows the insured is insured under health insurance
coverage, the nonparticipating physician shall not bill the insured except for any applicable
copayment, coinsurance, or deductible that would be owed if the insured utilized a
participating physician.
Proposed law provides that in determining the appropriate amount to pay for a healthcare
service, an independent dispute resolution entity shall consider all relevant factors,
including:
(1)Whether there is a gross disparity between the fee charged by the physician for
services rendered as compared to:
(a)Fees paid to the involved physician for the same services rendered by the
physician to other patients in healthcare plans in which the physician is not
participating.
(b)In the case of a dispute involving a healthcare plan, fees paid by the
healthcare plan to reimburse similarly qualified physicians for the same
services in the same region who are not participating with the healthcare
plan.
(2)The level of training, education and experience of the physician.
(3)The physician's usual charge for comparable services with regard to patients in
healthcare plans in which the physician is not participating.
(4)The circumstances and complexity of the particular case, including time and place
of the service.
(5)Individual patient characteristics.
(6)The usual and customary cost of the service.
Proposed law provides that the nonprevailing party is required to pay the costs of the
independent dispute resolution entity. Further provides that when a good faith negotiation
directed by the independent dispute resolution entity results in a settlement between the
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health insurance issuer and nonparticipating physician, the health insurance issuer and the
nonparticipating physician shall evenly divide and share the prorated cost for dispute
resolution.
Effective August 1, 2020.
(Adds R.S. 22:1828 and 1885.1 - 1885.8)
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