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2023 - 2024 LEGISLATURE
2023 ASSEMBLY BILL 784
December 8, 2023 - Introduced by Representatives J. ANDERSON, ANDRACA, BALDEH,
BARE, CLANCY, CONLEY, DRAKE, EMERSON, JACOBSON, JOERS, MADISON, MOORE
OMOKUNDE, ORTIZ-VELEZ, PALMERI, SHANKLAND, SHELTON, SNODGRASS,
SORTWELL, STUBBS and SUBECK, cosponsored by Senators SMITH, LARSON, L.
JOHNSON and WIRCH. Referred to Committee on Insurance.
***AUTHORS SUBJECT TO CHANGE***
AN ACT to create 609.045 of the statutes; relating to: insurance coverage and
balance billing for certain health care services and granting rule-making
authority.
Analysis by the Legislative Reference Bureau
This bill requires defined network plans, such as health maintenance
organizations, and certain preferred provider plans and self-insured governmental
plans that cover benefits or services provided in either an emergency department of
a hospital or independent freestanding emergency department to cover emergency
medical services without requiring a prior authorization determination and without
regard to whether the health care provider providing the emergency medical services
is a participating provider or facility. If the emergency medical services for which
coverage is required are provided by a nonparticipating provider, the plan must 1)
not impose a prior authorization requirement or other limitation that is more
restrictive than if the service was provided by a participating provider; 2) not impose
cost sharing on an enrollee that is greater than the cost sharing required if the
service was provided by a participating provider; 3) calculate the cost-sharing
amount to be equal to the amount that would have been charged if the service was
provided by a participating provider; 4) provide, within 30 days of the provider's or
facility's bill, an initial payment or denial notice to the provider or facility and then
pay a total amount to the provider or facility that is equal to the amount by which
the provider's or facility's rate exceeds the amount it received in cost sharing from
the enrollee; and 5) count any cost-sharing payment made by the enrollee for the
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emergency medical services toward any in-network deductible or out-of-pocket
maximum as if the cost-sharing payment was made for services provided by a
participating provider or facility. The provider or facility may not bill or hold liable
an enrollee of the plan for any amount for the emergency medical service that is more
than the cost-sharing amount that is calculated as described in the bill for the
emergency medical service.
For coverage of an item or service that is provided by a nonparticipating
provider in a participating facility, a plan must 1) not impose a cost-sharing
requirement for the item or service that is greater than the cost-sharing
requirement that would have been imposed if the item or service was provided by a
participating provider; 2) calculate the cost-sharing amount to be equal to the
amount that would have been charged if the service was provided by a participating
provider; 3) provide, within 30 days of the provider's bill, an initial payment or denial
notice to the provider and then pay a total amount to the provider that is equal to the
amount by which the provider's rate exceeds the amount it received in cost sharing
from the enrollee; and 4) count any cost-sharing payment made by the enrollee for
the items or services toward any in-network deductible or out-of-pocket maximum
as if the cost-sharing payment was made for items or services provided by a
participating provider. A nonparticipating provider providing an item or service in
a participating facility may not bill or hold liable an enrollee for more than the
cost-sharing amount unless the provider provides notice and obtains consent as
described in the bill. However, if the nonparticipating provider is providing an
ancillary item or service that is specified in the bill, and the commissioner of
insurance has not specifically allowed balance billing for that item or service by rule,
the nonparticipating provider providing the ancillary item or service in a
participating facility may not bill or hold liable an enrollee for more than the
cost-sharing amount.
Under the bill, a provider or facility that is entitled to a payment for an
emergency medical service or other item or service may initiate open negotiations
with the defined network plan, preferred provider plan, or self-insured
governmental health plan to determine the amount of payment. If the open
negotiation period terminates without determination of the payment amount, the
provider, facility, or plan may initiate the independent dispute resolution process as
specified by the commissioner of insurance. If an enrollee of a plan is a continuing
care patient, as defined in the bill, and is obtaining services from a participating
provider or facility, and the contract is terminated because of a change in the terms
of the participation of the provider or facility in the plan or the contract is terminated,
resulting in a loss of benefits under the plan, the plan must notify the enrollee of the
enrollee's right to elect to continue transitional care, provide the enrollee an
opportunity to notify the plan of the need for transitional care, and allow the enrollee
to continue to have the benefits provided under the plan under the same terms and
conditions as would have applied without the termination until either 90 days after
the termination notice date or the date on which the enrollee is no longer a continuing
care patient, whichever is earlier. If a continuing care patient would qualify for
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bill specifies that the continuing care patient may continue to receive coverage for
the longer period provided under current law.
This proposal may contain a health insurance mandate requiring a social and
financial impact report under s. 601.423, stats.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SECTION 1. 609.045 of the statutes is created to read:
609.045 Balance billing; emergency medical services. (1) DEFINITIONS.
In this section:
(a) “Emergency medical services” means emergency medical services for which
coverage is required under s. 632.85 (2) and includes emergency medical services
described under s. 632.85 (2) as if section 1867 of the federal Social Security Act
applied to an independent freestanding emergency department.
(b) “Preferred provider plan,” notwithstanding s. 609.01 (4), includes only any
preferred provider plan, as defined in s. 609.01 (4), that has a network of
participating providers and imposes on enrollees different requirements for using
providers that are not participating providers.
(c) “Self-insured governmental plan” means a self-insured health plan of the
state or a county, city, village, town, or school district that has a network of
participating providers and imposes on enrollees in the self-insured health plan
different requirements for using providers that are not participating providers.
(2) EMERGENCY MEDICAL SERVICES. A defined network plan, preferred provider
plan, or self-insured governmental plan that covers any benefits or services provided
in an emergency department of a hospital or emergency medical services provided
in an independent freestanding emergency department shall cover emergency
medical services in accordance with all of the following:
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(a) The plan may not require a prior authorization determination.
(b) The plan may not deny coverage on the basis of whether or not the health
care provider providing the services is a participating provider or participating
emergency facility.
(c) If the emergency medical services are provided to an enrollee by a provider
or in a facility that is not a participating provider or participating facility, the plan
complies with all of the following:
1. The emergency medical services are covered without imposing on an enrollee
a requirement for prior authorization or any coverage limitation that is more
restrictive than requirements or limitations that apply to emergency medical
services provided by participating providers or in participating facilities.
2. Any cost-sharing requirement imposed on an enrollee for the emergency
medical services is no greater than the requirements that would apply if the
emergency medical services were provided by a participating provider or in a
participating facility.
3. Any cost-sharing amount imposed on an enrollee for the emergency medical
services is calculated as if the total amount that would have been charged for the
emergency medical services if provided by a participating provider or in a
participating facility is equal to the amount paid to the provider or facility that is not
a participating provider or participating facility as determined by the commissioner.
4. The plan does all of the following:
a. No later than 30 days after the provider or facility transmits to the plan the
bill for emergency medical services, sends to the provider or facility an initial
payment or a notice of denial of payment.
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b. Pays to the provider or facility a total amount that, incorporating any initial
payment under subd. 4. a., is equal to the amount by which the rate for a provider
or facility that is not a participating provider or facility exceeds the cost-sharing
amount.
5. The plan counts any cost-sharing payment made by the enrollee for the
emergency medical services toward any in-network deductible or out-of-pocket
maximum applied by the plan in the same manner as if the cost-sharing payment
was made for emergency medical services provided by a participating provider or in
a participating facility.
(3) PROVIDER BILLING LIMITATION FOR EMERGENCY MEDICAL SERVICES; AMBULANCE
SERVICES. A provider of emergency medical services or a facility in which emergency
medical services are provided that is entitled to payment under sub. (2) may not bill
or hold liable an enrollee for any amount for the emergency medical service that is
more than the cost-sharing amount determined under sub. (2) (c) 3. for the
emergency service. A provider of ambulance services that is not a participating
provider under an enrollee's defined network plan, preferred provider plan, or
self-insured governmental plan may not bill or hold liable an enrollee for any
amount of the ambulance service that is more than the cost-sharing amount that the
enrollee would be charged if the provider of ambulance services was a participating
provider under the enrollee's plan.
(4) NONPARTICIPATING PROVIDER IN PARTICIPATING FACILITY. For items or services
other than emergency medical services that are provided to an enrollee of a defined
network plan, preferred provider plan, or self-insured governmental plan by a
provider that is not a participating provider but is providing services at a
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participating facility, the plan shall provide coverage for the item or service in
accordance with all of the following:
(a) The plan may not impose on an enrollee a cost-sharing requirement for the
item or service that is greater than the cost-sharing requirement that would have
been imposed if the item or service was provided by a participating provider.
(b) Any cost-sharing amount imposed on an enrollee for the item or service is
calculated as if the total amount that would have been charged for the item or service
if provided by a participating provider is equal to the amount paid to the provider
that is not a participating provider as determined by the commissioner.
(c) No later than 30 days after the provider transmits the bill for services, the
plan shall send to the provider an initial payment or a notice of denial of payment.
(d) The plan shall make a total payment directly to the provider that provided
the item or service to the enrollee that, added to any initial payment described under
par. (c), is equal to the amount by which the out-of-network rate for the item or
service exceeds the cost-sharing amount.
(e) The plan counts any cost-sharing payment made by the enrollee for the item
or service toward any in-network deductible or out-of-pocket maximum applied by
the plan in the same manner as if the cost-sharing payment was made for the item
or service when provided by a participating provider.
(5) CHARGING FOR SERVICES BY NONPARTICIPATING PROVIDER; NOTICE AND CONSENT.
(a) Except as provided in par. (c), a provider of an item or service that is entitled to
payment under sub. (4) may not bill or hold liable an enrollee for any amount for the
item or service that is more than the cost-sharing amount calculated under sub. (4)
(b) for the item or service unless the nonparticipating provider provides notice and
obtains consent in accordance with all of the following:
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1. The notice states that the provider is not a participating provider in the
enrollee's defined network plan, preferred provider plan, or self-insured
governmental plan.
2. The notice provides a good faith estimate of the amount that the
nonparticipating provider may charge the enrollee for the item or service involved,
including notification that the estimate does not constitute a contract with respect
to the charges estimated for the item or service.
3. The notice includes a list of the participating providers at the participating
facility that would be able to provide the item or service and notification that the
enrollee may be referred to one of those participating providers.
4. The notice includes information about whether or not prior authorization or
other care management limitations may be required before receiving an item or
service at the participating facility.
5. The notice clearly states that consent is optional and that the patient may
elect to seek care from an in-network provider.
6. The notice is worded in plain language.
7. The notice is available in languages other than English. The commissioner
shall identify languages for which the notice should be available.
8. The enrollee provides consent to the nonparticipating provider to be treated
by the nonparticipating provider, and the consent acknowledges that the enrollee
has been informed that the charge paid by the enrollee may not meet a limitation that
the enrollee's defined network plan, preferred provider plan, or self-insured
governmental plan places on cost sharing, such as an in-network deductible.
9. A signed copy of the consent described under subd. 8. is provided to the
enrollee.
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(b) To be considered adequate, the notice and consent under par. (a) shall meet
one of the following requirements, as applicable:
1. If the enrollee makes an appointment for the item or service at least 72 hours
before the day on which the item or service is to be provided, any notice under par.
(a) shall be provided to the enrollee at least 72 hours before the day of the
appointment at which the item or service is to be provided.
2. If the enrollee makes an appointment for the item or service less than 72
hours before the day on which the item or service is to be provided, any notice under
par. (a) shall be provided to the enrollee on the day that the appointment is made.
(c) A provider of an item or service that is entitled to payment under sub. (4)
may not bill or hold liable an enrollee for any amount for an ancillary item or service
that is more than the cost-sharing amount determined under sub. (4) (b) for the item
or service, unless the commissioner specifies by rule that the provider may balance
bill for the ancillary item or service, if the item or service is any of the following:
1. Related to an emergency medical service.
2. Anesthesiology.
3. Pathology.
4. Radiology.
5. Neonatology.
6. An item or service provided by an assistant surgeon, hospitalist, or
intensivist.
7. A diagnostic service, including a radiology or laboratory service.
8. An item or service provided by a specialty practitioner that the commissioner
specifies by rule.
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9. An item or service provided by a nonparticipating provider when there is no
participating provider that can furnish the item or service at the participating
facility.
(d) Any notice and consent provided under par. (a) may not extend to items or
services furnished as a result of unforeseen, urgent medical needs that arise at the
time the item or service is provided.
(e) Any consent provided under par. (a) shall be retained by the provider for no
less than 7 years.
(6) NOTICE BY PROVIDER OR FACILITY. Beginning no later than January 1, 2024,
a health care provider or health care facility shall make available, including posting
on a website, to enrollees in defined network plans, preferred provider plans, and
self-insured governmental plans notice of the requirements on a provider or facility
under subs. (3) and (5), of any other applicable state law requirements on the
provider or facility with respect to charging an enrollee for an item or service if the
provider or facility does not have a contractual relationship with the plan, and of
information on contacting appropriate state or federal agencies in the event the
enrollee believes the provider or facility violates any of the requirements under this
section or other applicable law.
(7) NEGOTIATION; DISPUTE RESOLUTION. A provider or facility that is entitled to
receive an initial payment or notice of denial under sub. (2) (c) 4. a. or (4) (c) may
initiate, within 30 days of receiving the initial payment or notice of denial, open
negotiations with the defined network plan, preferred provider plan, or self-insured
governmental plan to determine a payment amount for an emergency medical
service or other item or service for a period that terminates 30 days after initiating
open negotiations. If the open negotiation period under this subsection terminates
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without determination of a payment amount, the provider, facility, defined network
plan, preferred provider plan, or self-insured governmental plan may initiate,
within the 4 days beginning on the day after the open negotiation period ends, the
independent dispute resolution process as specified by the commissioner. If the
independent dispute resolution decision maker determines the payment amount,
the party to the independent dispute resolution process whose amount was not
selected shall pay the fees for the independent dispute resolution. If the parties to
the independent dispute resolution reach a settlement on the payment amount, the
parties to the independent dispute resolution shall equally divide the payment for
the fees for the independent dispute resolution.
(8) CONTINUITY OF CARE. (a) In this subsection:
1. “Continuing care patient” means an individual who is any of the following:
a. Undergoing a course of treatment for a serious and complex condition from
a provider or facility.
b. Undergoing a course of institutional or inpatient care from a provider or
facility.
c. Scheduled to undergo nonelective surgery, including receipt of postoperative
care, from a provider or facility.
d. Pregnant and undergoing a course of treatment for the pregnancy from a
provider or facility.
e. Terminally ill and receiving treatment for the illness from a provider or
facility.
2. “Serious and complex condition” means any of the following:
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a. In the case of an acute illness, a condition that is serious enough to require
specialized medical treatment to avoid the reasonable possibility of death or
permanent harm.
b. In the case of a chronic illness or condition, a condition that is
life-threatening, degenerative, potentially disabling, or congenital and requires
specialized medical care over a prolonged period.
(b) If an enrollee is a continuing care patient and is obtaining items or services
from a participating provider or participating facility and the contract between the
defined network plan, preferred provider plan, or self-insured governmental plan
and the participating provider or participating facility is terminated or the coverage
of benefits that include the items or services provided by the participating provider
or participating facility are terminated by the plan, the plan shall do all of the
following:
1. Notify each enrollee of the termination of the contract or benefits and of the
right for the enrollee to elect to continue transitional care from the provider or facility
under this subsection.
2. Provide the enrollee an opportunity to notify the plan of the need for
transitional care.
3. Allow the enrollee to elect to continue to have the benefits provided under
the plan under the same terms and conditions as would have applied to the item or
service if the termination had not occurred for the course of treatment related to the
enrollee's status as a continuing care patient beginning on the date on which the
notice under subd. 1. is provided and ending 90 days after the date on which the
notice under subd. 1. is provided or the date on which the enrollee is no longer a
continuing care patient, whichever is earlier.
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(c) The provisions of s. 609.24 apply to a continuing care patient to the extent
that s. 609.24 does not conflict with this subsection so as to limit the enrollee's rights
under this subsection.
(9) RULE MAKING. The commissioner may promulgate any rules necessary to
implement this section, including specifying the independent dispute resolution
process under sub. (7). The commissioner may promulgate rules to modify the list
of those items and services for which a provider may not balance bill under sub. (5)
(c).
(END)
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