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STATE OF OKLAHOMA
1st Session of the 58th Legislature (2021)
HOUSE BILL 2807 By: Sneed
AS INTRODUCED
An Act relating to insurance; creating the Oklahoma
Out-of-Network Surprise Billing and Transparency Act;
providing for applicability; defining ter ms;
requiring policies to reference certain rates;
providing for certain baseline charges; limiting rate
increases; authorizing the Attorney General to bring
a civil action for certain required usual, customary,
and reasonable reimbursement rates; authoriz ing the
Attorney General to bring a civil action for surprise
billing prohibition; providing for emergency services
provided by an out-of-network provider; providing for
emergency services provided at an out -of-network
facility; providing for nonemergency services
provided by an out-of-network provider at an in -
network facility; providing for nonemergency services
provided by an out-of-network provider at an out -of-
network facility; requiring the Insurance
Commissioner to select an organization to maintain a
benchmarking database; providing for availability of
arbitration; requiring participation for certain
cases; providing time limitation for requesting
arbitration in certain cases; requiring written
notice; directing the Insurance Commissioner to
promulgate rules for submitting multiple claims to
arbitration; limiting issues arbitrator may address;
providing for basis for determination; prohibiting
civil action until conclusion of arbitration;
exempting arbitration from the Uniform Arbitration
Act; providing for selection and approval of
arbitrators; providing for arbitration procedures;
providing for arbitrator decision; requiring written
notice; providing fo r court review of arbitrator
decision; providing for bad faith in arbitration;
providing penalties; directing the Insurance
Commissioner and the Oklahoma Board of Medical
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Licensure and Supervision to adopt certain rules;
requiring Insurance Department and Oklahoma Board of
Medical Licensure and Supervision to maintain certain
information; requiring the Insurance Department to
conduct biennium study; requiring written report to
Legislature; requiring written notice of benefits and
billing prohibitions; amending 12 O.S. 2011, Section
1854, which relates to the Uniform Arbitration Act;
providing an exceptio n; providing for codification;
and providing an effective date.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 6060.60 of Title 36 , unless
there is created a duplication in numbering, reads as follows:
Sections 1 through 21 of this act shall be known and may be
cited as the "Oklahoma Out -of-Network Surprise Billing and
Transparency Act".
SECTION 2. NEW LAW A n ew section of law to be codified
in the Oklahoma Statutes as Section 6060.61 of Title 36, unless
there is created a duplication in numbering, reads as follows:
The Oklahoma Out-of-Network Surprise Billing and Transparency
Act shall apply to all state -regulated health benefit plans except:
1. HealthChoice health benefit plans administered by the
Oklahoma Office of Management and Enterprise Services;
2. Medicaid;
3. Medicare; and
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4. The Employee Retirement Income Security Act of 1974 health
benefit plans.
SECTION 3. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 6060.62 of Title 36, unless
there is created a duplication in numbering, reads as follows:
As used in the Oklahoma Out -of-Network Surprise Billing and
Transparency Act:
1. "Arbitration" means a process in which an impartial
arbitrator issues a binding determination in a dispute between a
health benefit plan issuer or administrator and an out -of-network
provider and/or facility or the provider or facility's
representative to settle a health benefit claim;
2. "Geozip" means an area that includes all zip codes with
identical first three digits;
3. "Surprise billing" means the practice by a health care
provider or facility who does not, or is un able to, participate in
an enrollee's health benefit plan network, and charges an enrollee
the difference between the provider's or facility's fee and the sum
of what the enrollee's health benefit plan pays and what the
enrollee is required to pay in appli cable deductibles, copayments,
coinsurance or other cost -sharing amounts required by the health
benefit plan; and
4. "Usual, customary, and reasonable rate" or "UCR rate" means
the eightieth percentile of all charges for the particular health
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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 Insurance Commissioner;
provided, the nonprofit organization shall not be financially
affiliated with an insurance carrier or health care provider.
SECTION 4. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 6060.63 of Title 36, unless
there is created a duplication in numbering, reads as follows:
All health insurance benefit policies must reference the usual,
customary, and reasonable rate for the purpose of providing an
enrollee with reimbursement transparency for out -of-network health
care providers and facilities. The charges for services reflected
by the Current Procedural Terminology code as reflected in the
eightieth percentile of charge data supplied by an independent
benchmarking database on November 1, 2021 , shall constitute th e
baseline for provider or facility charges. Beginning November 1,
2021, provider or facility charges may change anytime the charge
data supplied by an independent benchmarking database changes, but
may not increase at a rate greater than the Consumer Pri ce Index.
SECTION 5. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 6060.64 of Title 36, unless
there is created a duplication in numbering, reads as follows:
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If a health benefit plan issuer or admin istrator has restricted
or prohibited a health care provider or health care facility from
billing an insured, participant or enrollee for applicable
copayment, coinsurance, and deductible amounts required under the
Oklahoma Out-of-Network Surprise Billing and Transparency Act, the
Attorney General may bring a civil action in the name of the state
to ensure the health care provider, health care facility or
administrator may bill an enrollee the applicable copayment,
coinsurance, and deductible amounts. If t he Attorney General
prevails in an action brought against a health benefit plan issuer
or administrator, the Attorney General may recover reasonable
attorney fees, costs and expenses, including court costs and witness
fees incurred in bringing the action.
SECTION 6. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 6060.65 of Title 36, unless
there is created a duplication in numbering, reads as follows:
If a health care provider, health care facility or administrator
has billed an enrollee an amount greater than the applicable
copayment, coinsurance, and deductible amount s required under the
Oklahoma Out-of-Network Surprise Billing and Transparency Act, the
Attorney General may bring a civil action in th e name of the state
to ensure the enrollee is not responsible for an amount greater than
the applicable copayment, coinsurance, and deductible amounts. If
the Attorney General prevails in an action brought against a health
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benefit plan issuer or administr ator, the Attorney General may
recover reasonable attorney fees, costs and expenses, including
court costs and witness fees incurred in bringing the action.
SECTION 7. NEW LAW A new section of law to be codified
in the Oklahoma Stat utes as Section 6060.66 of Title 36, unless
there is created a duplication in numbering, reads as follows:
A. When an enrollee in a health benefit plan that covers
emergency services receives the services from an out -of-network
provider or out-of-network facility, the health benefit plan shall
ensure that the enrollee shall incur no greater out -of-pocket costs
for the emergency services than the enrollee would have incurred
with an in-network provider.
B. If a covered person receives covered emergency ser vices by
an out-of-network provider or out -of-network facility, the carrier
shall pay the out-of-network provider directly and the initial
payment shall be the greater of the:
1. Medicare rate;
2. In-network rate;
3. Usual, customary, and reasonable rat e; or
4. Agreed upon rate.
C. The insurer shall make the payment required by this section
directly to the provider no later than, as applicable:
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1. Thirty (30) days after the date the insurer receives an
electronic clean claim for those services that in cludes all
information necessary for the insurers to pay the claim; or
2. Forty-five (45) days after the date the insurer receives a
nonelectronic clean claim for those services that includes all
information necessary for the insurer to pay the claim.
SECTION 8. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 6060.67 of Title 36, unless
there is created a duplication in numbering, reads as follows:
A. If a covered person receives covered services at an in-
network facility from an out -of-network provider, the carrier shall
pay the out-of-network provider directly and initial payment shall
be at the usual, customary, and reasonable rate or at an agreed upon
rate.
B. The enrollee who receives care shall not be responsible for
any amount greater than his or her applicable in -network copayment,
coinsurance, and deductible amount s.
C. The insurer shall make payment required by this section
directly to the provider no later than, as applicable:
1. Thirty (30) days after the date the insurer receives an
electronic clean claim for those services that includes all
information necessary for the insurers to pay the claim; or
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2. Forty-five (45) days after the date the insurer receives a
nonelectronic clean claim for those services that includes all
information necessary for the insurer to pay the claim.
SECTION 9. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 6060.68 of Title 36, unless
there is created a duplication in numbering, reads as follows:
A. If a covered person with out -of-network health benefits
elects to receive covered services at an out -of-network facility
from an out-of-network provider, the carrier shall pay the out -of-
network provider and facility directly and the initial payment shall
be paid at the usual, customary, and reasonable rate or an agreed
upon rate.
The enrollee who receives care shall not be responsible for any
amount greater than his or her applicable out -of-network copayment,
coinsurance, and deductible amount s.
B. The insurer shall make the payment required by this section
directly to the provider and facility no later than, as applicable:
1. Thirty (30) days after the date the insurer receives an
electronic clean claim for those services that includes all
information necessary for the insurer to pay the claim; or
2. Forty-five (45) days after the date the insurer receives a
nonelectronic clean claim for those services that includes all
information necessary for the insurer to pay the claim.
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C. Nothing in this section shall be construed to prohibit an
out-of-network provider or out -of-network facility from accepting
less than the usual, customary, and reasonable rate so long as an
agreement has been made between the enrolle e and out-of-network
health care provider or out -of-network facility.
SECTION 10. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 6060.69 of Title 36, unless
there is created a duplication in numbering , reads as follows:
A. A health care or medical service or supply provided at a
location that does not have a zip code is considered to be provided
in the geozip area closest to the location at which the service or
supply is provided.
B. The Insurance Co mmissioner shall select an organization to
maintain a benchmarking database in accordance with this section.
The organization shall not:
1. Be affiliated with a health benefit plan issuer or
administrator, a health care practitioner or other health care
provider; or
2. Have any other conflict of interest.
C. The benchmarking database shall contain the following
information necessary to calculate, with respect to a health care or
medical service or supply, for each geozip area in this state:
1. Percentiles of billed charges for all out -of-network
providers and facilities; and
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2. Percentiles of rates paid to participating providers and
facilities.
D. Insurers shall be required to submit data necessary for the
use of the benchmarking database as specifie d in this section.
E. The Commissioner may adopt rules governing the submission of
information for the benchmarking database.
SECTION 11. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 6060.70 of Tit le 36, unless
there is created a duplication in numbering, reads as follows:
A. An out-of-network provider, out -of-network facility, and
health benefit plan issuer or administrator may request arbitration
of a settlement of an out -of-network health benefi t claim through a
portal on the Oklahoma Insurance Department's website if:
1. There is an amount billed by the out -of-network provider or
out-of-network facility and unpaid by the issuer or administrator
after copayments, coinsurance, and deductibles for which an enrollee
may not be billed; or
2. a. The required usual, customary, and reasonable rate
paid by an insurer is deemed unreasonable, and
b. The health benefit claim is for:
(1) nonemergency care provided at an out -of-network
facility,
(2) nonemergency care provided by an out -of-network
provider,
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(3) emergency care provided at an out -of-network
facility,
(4) emergency care provided by an out -of-network
provider, or
(5) an emergency claim denial is based on a review of
the patient's diagnosis code.
B. If a person requests arbitration under this section, and
depending on who initiates, the out -of-network provider, out -of-
network facility, or a representative of the provider or facility,
and the health benefit plan issuer or the administrator, as
appropriate, shall participate in the arbitration.
C. Not later than ninety (90) days after the date an out -of-
network provider or out -of-network facility receives the initial
payment for a health care or medical service or supply, the out -of-
network provider, health care facility, or representative of the
out-of-network health care provider or out -of-network facility,
health benefit plan issuer or administrator may request arbitration
of a settlement of an out -of-network health benefit claim through a
portal on the Department's website if:
1. There is an amount billed by the out -of-network provider or
out-of-network facility and unpaid by the issuer or administrator
after copayments, coinsurance, and deductibles for which an enrollee
may not be billed; or
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2. a. The required usual, customary, and reasonable rate
paid by an insurer is deemed unreasonable, and
b. The health benefit claim is for:
(1) nonemergency care provided at an out -of-network
facility,
(2) nonemergency care provided by an out -of-network
provider,
(3) emergency care provided at an out -of-network
facility,
(4) emergency care provided by an out -of-network
provider, or
(5) an emergency claim denial is based on a review of
the patient's diagnosis code.
D. Nothing in this section shall prohibit a hea lth care
provider or facility from utilizing arbitration in cases where
medical necessity is disputed.
E. If a person requests arbitration, the out -of-network
provider, out-of-network facility, or an appropriate representative,
and the health benefit plan issuer or administrator, as appropriate,
shall participate in the arbitration.
F. The party who requests arbitration shall provide written
notice on the date the arbitration is requested in the form and
manner prescribed by Insurance Commissioner rule to :
1. The Department; and
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2. Each party.
G. In an effort to settle the claim before arbitration, all
parties shall participate in an informal settlement teleconference
no later than thirty (30) days after the date on which the
arbitration is requested. A health benefit plan issuer or
administrator, as applicable, shall make a reasonable effort to
arrange the teleconference.
H. The Commissioner shall promulgate rules providing
requirements for submitting multiple claims to arbitration in one
proceeding. The rules shall provide:
1. The total amount in controversy for multiple claims in one
proceeding shall not exceed Five Thousand Dollars ($5,000.00); and
2. The multiple claims in one proceeding shall be limited to
the same out-of-network provider or fa cility and health benefit plan
issuer.
I. Nothing in this section shall be construed to limit the
amount in controversy for an individual claim in one arbitration
proceeding.
SECTION 12. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 6060.71 of Title 36, unless
there is created a duplication in numbering, reads as follows:
A. The only issue the arbitrator may determine is the
reasonable amount for the health care or medical services or
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supplies provided to the enrollee by an out -of-network provider or
out-of-network facility.
B. The determination shall take into account:
1. Whether there is a disparity between the fee billed by the
out-of-network provider or out -of-network facility;
2. Fees paid to the out-of-network provider or out -of-network
facility;
3. Level of training, education, and experience of the out -of-
network provider;
4. The out-of-network provider's or facility's usual billed
charge for comparable services or supplies with regard to other
enrollees for which the provider or facility is out -of-network;
5. The circumstances and complexity of the enrollee's
particular case, including the time and place of the provision of
service or supply;
6. Individual enrollee characteristics;
7. Medical journals and peer -reviewed articles pertaining to
medical necessity;
8. Percentiles of out -of-network billed charges for the same
service or supply performed by a health care provider or facility in
the same or similar specialty and provided in th e same geozip as
reported in a benchmarking database;
9. The usual, customary, and reasonable rate as defined in
Section 3 of this act;
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10. The history of networking contracting between the parties;
11. Historical data for percentiles; and
12. An offer made during the informal settlement
teleconference.
SECTION 13. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 6060.72 of Title 36, unless
there is created a duplication in numbering, reads as follow s:
A. An out-of-network provider, facility or health benefit plan
issuer or administrator may not file suit for an out -of-network
claim subject to the Oklahoma Out -of-Network Surprise Billing and
Transparency Act until the conclusion of the arbitration on the
issue of the amount to be paid in the out -of-network claim dispute.
B. The arbitration conducted under the Oklahoma Out -of-Network
Surprise Billing and Transparency Act is not subject to the Uniform
Arbitration Act.
SECTION 14. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 6060.73 of Title 36, unless
there is created a duplication in numbering, reads as follows:
A. If parties are unable to mutually agree on an arbitrator
within thirty (30) days after the date the arbitration is requested,
the party requesting arbitration shall notify the Insurance
Commissioner, and the Commissioner shall select an arbitrator from
the Commissioner's list of approved arbitrators.
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B. In selecting an arbitrator, th e Commissioner shall give
preference to an arbitrator who is knowledgeable and experienced in
applicable principles of contract and insurance law and the health
care industry generally.
C. In approving an individual as an arbitrator, the
Commissioner shall ensure that the individual does not have a
conflict of interest that would adversely impact the arbitrator's
independence and impartiality in rendering a decision in an
arbitration. A conflict of interest includes current or recent
ownership or employme nt of the individual or a close family member
as a health benefit issuer or administrator, physician, health care
practitioner, or other health care provider.
D. The Commissioner shall immediately terminate the approval of
an arbitrator who no longer meet s the requirements adopted by the
Commissioner.
SECTION 15. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 6060.74 of Title 36, unless
there is created a duplication in numbering, reads as follows:
A. The arbitrator shall set a date for submission of all
information to be considered by the arbitrator.
B. A party shall not engage in discovery in connection with the
arbitration.
C. On agreement of all parties, any deadline may be extended.
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D. The party which is not awarded the amount submitted to
arbitration shall pay all expenses and fees required by the
arbitrator.
E. Information submitted to the arbitrator is confidential and
not public record.
SECTION 16. NEW LAW A new sect ion of law to be codified
in the Oklahoma Statutes as Section 6060.75 of Title 36, unless
there is created a duplication in numbering, reads as follows:
A. No later than fifty -one (51) days after the date the
arbitration is requested, an arbitrator shall provide the parties
with a written decision in which the arbitrator:
1. Determines whether the health care provider or health care
facility's charge is reasonable;
2. Determines whether the usual, customary, and reasonable rate
paid by an insurer is unre asonable; and
3. Selects the amount determined to be the closest as the
binding award.
B. An arbitrator shall not modify the binding award amount.
C. An arbitrator shall provide written notice in the form and
manner prescribed by the Insurance Commissio ner rule of the
reasonable amount for the services or supplies and the binding award
amount. If the parties settle before a decision, the parties shall
provide written notice in the form and manner prescribed by
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Commissioner rule of the amount of settleme nt. The Oklahoma
Insurance Department shall maintain a record of notices.
SECTION 17. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 6060.76 of Title 36, unless
there is created a duplication in numb ering, reads as follows:
A. An arbitrator's decision shall be binding.
B. No later than forty -five (45) days after the date of an
arbitrator's decision, a party not satisfied with the decision may
file an action to determine the payment due.
C. In an action filed, the court shall determine whether the
arbitrator's decision is proper based on a substantial evidence
review.
D. No later than thirty (30) days after the date of an
arbitrator's decision, a health benefit plan issuer or administrator
shall pay the amount necessary to satisfy the binding award.
E. Based on the arbitrator's binding award amount, the losing
party shall be required to pay the arbitrator's fees and expenses.
SECTION 18. NEW LAW A new section of law to be codi fied
in the Oklahoma Statutes as Section 6060.77 of Title 36, unless
there is created a duplication in numbering, reads as follows:
A. The following constitutes bad faith participation in
arbitration:
1. Failing to participate in the informal settlement
teleconference;
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2. Failing to provide information the arbitrator believes
necessary to facilitate a decision or agreement; or
3. Failing to designate a representative participating in the
arbitration with full authority to enter into any agreement.
B. Failure to reach an agreement is not conclusive proof of bad
faith participation.
SECTION 19. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 6060.78 of Title 36, unless
there is created a duplication i n numbering, reads as follows:
A. Bad faith participation or otherwise failing to comply with
arbitration requirements is grounds for imposition of an
administrative penalty by the regulatory agency that issued a
license or certificate of authority to the party who committed the
violation.
B. Except for good cause shown, on a report of an arbitrator
and appropriate proof of bad faith participation, the regulatory
agency shall impose an administrative penalty.
C. The Insurance Commissioner and the Oklahom a Board of Medical
Licensure and Supervision or other regulatory agency, as
appropriate, shall adopt rules regulating the investigation and
review of a complaint filed that relates to the settlement of an
out-of-network health benefit claim.
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1. The rules adopted shall distinguish between complaints for
out-of-network coverage or payment and give priority to
investigating allegations of delayed health care or medical care;
2. Develop a form for filing a complaint; and
3. Ensure that a complaint is not dis missed without appropriate
consideration.
D. The Oklahoma Insurance Department and State Board of Medical
Licensure and Supervision or other appropriate regulatory agency
shall maintain the following information on each complaint filed
that concerns a claim and arbitration:
1. The type of services or supplies that gave rise to the
dispute;
2. The type of specialty, if any, of the out -of-network
provider or facility who provided the out -of-network service or
supply;
3. The county and metropolitan area in which the health care or
medical service or supply was provided;
4. Whether the health care or medical service or supply was for
emergency care;
5. Any other information about the health benefit plan issuer
or administrator that the Commissioner by rule requires; or
6. The out-of-network provider or facility that the State Board
of Medical Licensure and Supervision or other appropriate regulatory
agency by rule requires.
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E. All information collected is public information and may not
include personally identifiable information.
SECTION 20. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 6060.79 of Title 36, unless
there is created a duplication in numbering, reads as follows:
A. The Oklahoma State I nsurance Department shall, each
biennium, conduct a study on the impacts of the Oklahoma Out -of-
Network Surprise Billing and Transparency Act and shall include:
1. Trends and changes in billed amounts;
2. Trends and changes in paid amounts;
3. Trends and changes in network participation;
4. Trends and changes in paid amounts to in -network providers
or facilities;
5. Trends and changes in paid amounts to out -of-network
providers or facilities; and
6. Number of complaints and results of claims that ente r
arbitration, including effectiveness of arbitration.
B. Beginning December 1, 2022, and no later than December 1 of
every other year thereafter, the Department shall prepare and submit
a written report on the results of the study to the Legislature and
appropriate committees.
SECTION 21. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 6060.80 of Title 36, unless
there is created a duplication in numbering, reads as follows:
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An insurer shall provide by written notice an explanation of
benefits provided to the insured and the physician or health care
provider in connection with a medical care or health care service or
supply provided by an out -of-network provider or facility. The
notice shall include a statement of the billing prohibition as
applicable to the Oklahoma Out -of-Network Surprise Billing and
Transparency Act that includes:
1. The total amount the health care provider or facility may
bill the insured under the insured' s health benefit plan and an
itemization of copayments, coinsurance, deductibles, and other
amounts included in the total;
2. An explanation of benefits provided to the health care
provider or facility with information required by rule advising the
health care provider or fac ility of the availability of arbitration,
as applicable under the Oklahoma Out -of-Network Surprise Billing and
Transparency Act; and
3. For elective services that are covered by an enrollee's
health benefit plan, if requested by an enrollee before a sched uled
service and explanation of benefits, the provider's average amounts
paid to comparable in -network health care providers or facilities
for covered services.
SECTION 22. AMENDATORY 12 O.S. 2011, Section 1854, is
amended to read as follows:
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Section 1854. A. The Uniform Arbitration Act governs an
agreement to arbitrate made on or after January 1, 2006.
B. The Uniform Arbitration Act governs an agreement to
arbitrate made before January 1, 2006, if all the parties to the
agreement or to the arbitration proceeding so agree in a record.
C. Beginning January 1, 2006, the Uniform Arbitration Act
governs an agreement to arbitrate whenever made.
D. The Uniform Arbitration Act shall not apply to the Oklahoma
Out-of-Network Surprise Bil ling and Transparency Act.
SECTION 23. This act shall become effective November 1, 2021.
58-1-6816 AB 12/29/20