Wisconsin 2023-2024 Regular Session

Wisconsin Senate Bill SB743 Compare Versions

Only one version of the bill is available at this time.

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1	1	LRB-5183/1
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3	3	2023 - 2024 LEGISLATURE
4	4	2023 SENATE BILL 743
5	5	December 8, 2023 - Introduced by Senators SMITH, LARSON, L. JOHNSON and WIRCH,
6	6	cosponsored by Representatives J. ANDERSON, ANDRACA, BARE, CLANCY,
7	7	CONLEY, DRAKE, EMERSON, JACOBSON, JOERS, MADISON, MOORE OMOKUNDE,
8	8	ORTIZ-VELEZ, PALMERI, SHELTON, SNODGRASS, SORTWELL, STUBBS and SUBECK.
9	9	Referred to Committee on Insurance and Small Business.
10	10	AN ACT to create 609.045 of the statutes; relating to: insurance coverage and
11	11	balance billing for certain health care services and granting rule-making
12	12	authority.
13	13	Analysis by the Legislative Reference Bureau
14	14	This bill requires defined network plans, such as health maintenance
15	15	organizations, and certain preferred provider plans and self-insured governmental
16	16	plans that cover benefits or services provided in either an emergency department of
17	17	a hospital or independent freestanding emergency department to cover emergency
18	18	medical services without requiring a prior authorization determination and without
19	19	regard to whether the health care provider providing the emergency medical services
20	20	is a participating provider or facility. If the emergency medical services for which
21	21	coverage is required are provided by a nonparticipating provider, the plan must 1)
22	22	not impose a prior authorization requirement or other limitation that is more
23	23	restrictive than if the service was provided by a participating provider; 2) not impose
24	24	cost sharing on an enrollee that is greater than the cost sharing required if the
25	25	service was provided by a participating provider; 3) calculate the cost-sharing
26	26	amount to be equal to the amount that would have been charged if the service was
27	27	provided by a participating provider; 4) provide, within 30 days of the provider's or
28	28	facility's bill, an initial payment or denial notice to the provider or facility and then
29	29	pay a total amount to the provider or facility that is equal to the amount by which
30	30	the provider's or facility's rate exceeds the amount it received in cost sharing from
31	31	the enrollee; and 5) count any cost-sharing payment made by the enrollee for the
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35	35	JPC:cdc
36	36	SENATE BILL 743
37	37	emergency medical services toward any in-network deductible or out-of-pocket
38	38	maximum as if the cost-sharing payment was made for services provided by a
39	39	participating provider or facility. The provider or facility may not bill or hold liable
40	40	an enrollee of the plan for any amount for the emergency medical service that is more
41	41	than the cost-sharing amount that is calculated as described in the bill for the
42	42	emergency medical service.
43	43	For coverage of an item or service that is provided by a nonparticipating
44	44	provider in a participating facility, a plan must 1) not impose a cost-sharing
45	45	requirement for the item or service that is greater than the cost-sharing
46	46	requirement that would have been imposed if the item or service was provided by a
47	47	participating provider; 2) calculate the cost-sharing amount to be equal to the
48	48	amount that would have been charged if the service was provided by a participating
49	49	provider; 3) provide, within 30 days of the provider's bill, an initial payment or denial
50	50	notice to the provider and then pay a total amount to the provider that is equal to the
51	51	amount by which the provider's rate exceeds the amount it received in cost sharing
52	52	from the enrollee; and 4) count any cost-sharing payment made by the enrollee for
53	53	the items or services toward any in-network deductible or out-of-pocket maximum
54	54	as if the cost-sharing payment was made for items or services provided by a
55	55	participating provider. A nonparticipating provider providing an item or service in
56	56	a participating facility may not bill or hold liable an enrollee for more than the
57	57	cost-sharing amount unless the provider provides notice and obtains consent as
58	58	described in the bill. However, if the nonparticipating provider is providing an
59	59	ancillary item or service that is specified in the bill, and the commissioner of
60	60	insurance has not specifically allowed balance billing for that item or service by rule,
61	61	the nonparticipating provider providing the ancillary item or service in a
62	62	participating facility may not bill or hold liable an enrollee for more than the
63	63	cost-sharing amount.
64	64	Under the bill, a provider or facility that is entitled to a payment for an
65	65	emergency medical service or other item or service may initiate open negotiations
66	66	with the defined network plan, preferred provider plan, or self-insured
67	67	governmental health plan to determine the amount of payment. If the open
68	68	negotiation period terminates without determination of the payment amount, the
69	69	provider, facility, or plan may initiate the independent dispute resolution process as
70	70	specified by the commissioner of insurance. If an enrollee of a plan is a continuing
71	71	care patient, as defined in the bill, and is obtaining services from a participating
72	72	provider or facility, and the contract is terminated because of a change in the terms
73	73	of the participation of the provider or facility in the plan or the contract is terminated,
74	74	resulting in a loss of benefits under the plan, the plan must notify the enrollee of the
75	75	enrollee's right to elect to continue transitional care, provide the enrollee an
76	76	opportunity to notify the plan of the need for transitional care, and allow the enrollee
77	77	to continue to have the benefits provided under the plan under the same terms and
78	78	conditions as would have applied without the termination until either 90 days after
79	79	the termination notice date or the date on which the enrollee is no longer a continuing
80	80	care patient, whichever is earlier. If a continuing care patient would qualify for
81	81	continued care for a longer period under current law than specified in the bill, the - 3 -2023 - 2024 Legislature
82	82	LRB-5183/1
83	83	JPC:cdc
84	84	SENATE BILL 743
85	85	bill specifies that the continuing care patient may continue to receive coverage for
86	86	the longer period provided under current law.
87	87	This proposal may contain a health insurance mandate requiring a social and
88	88	financial impact report under s. 601.423, stats.
89	89	The people of the state of Wisconsin, represented in senate and assembly, do
90	90	enact as follows:
91	91	SECTION 1. 609.045 of the statutes is created to read:
92	92	609.045 Balance billing; emergency medical services. (1) DEFINITIONS.
93	93	In this section:
94	94	(a) “Emergency medical services” means emergency medical services for which
95	95	coverage is required under s. 632.85 (2) and includes emergency medical services
96	96	described under s. 632.85 (2) as if section 1867 of the federal Social Security Act
97	97	applied to an independent freestanding emergency department.
98	98	(b) “Preferred provider plan,” notwithstanding s. 609.01 (4), includes only any
99	99	preferred provider plan, as defined in s. 609.01 (4), that has a network of
100	100	participating providers and imposes on enrollees different requirements for using
101	101	providers that are not participating providers.
102	102	(c) “Self-insured governmental plan” means a self-insured health plan of the
103	103	state or a county, city, village, town, or school district that has a network of
104	104	participating providers and imposes on enrollees in the self-insured health plan
105	105	different requirements for using providers that are not participating providers.
106	106	(2) EMERGENCY MEDICAL SERVICES. A defined network plan, preferred provider
107	107	plan, or self-insured governmental plan that covers any benefits or services provided
108	108	in an emergency department of a hospital or emergency medical services provided
109	109	in an independent freestanding emergency department shall cover emergency
110	110	medical services in accordance with all of the following:
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132	132	SECTION 1 SENATE BILL 743
133	133	(a) The plan may not require a prior authorization determination.
134	134	(b) The plan may not deny coverage on the basis of whether or not the health
135	135	care provider providing the services is a participating provider or participating
136	136	emergency facility.
137	137	(c) If the emergency medical services are provided to an enrollee by a provider
138	138	or in a facility that is not a participating provider or participating facility, the plan
139	139	complies with all of the following:
140	140	1. The emergency medical services are covered without imposing on an enrollee
141	141	a requirement for prior authorization or any coverage limitation that is more
142	142	restrictive than requirements or limitations that apply to emergency medical
143	143	services provided by participating providers or in participating facilities.
144	144	2. Any cost-sharing requirement imposed on an enrollee for the emergency
145	145	medical services is no greater than the requirements that would apply if the
146	146	emergency medical services were provided by a participating provider or in a
147	147	participating facility.
148	148	3. Any cost-sharing amount imposed on an enrollee for the emergency medical
149	149	services is calculated as if the total amount that would have been charged for the
150	150	emergency medical services if provided by a participating provider or in a
151	151	participating facility is equal to the amount paid to the provider or facility that is not
152	152	a participating provider or participating facility as determined by the commissioner.
153	153	4. The plan does all of the following:
154	154	a. No later than 30 days after the provider or facility transmits to the plan the
155	155	bill for emergency medical services, sends to the provider or facility an initial
156	156	payment or a notice of denial of payment.
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181	181	LRB-5183/1
182	182	JPC:cdc
183	183	SECTION 1
184	184	SENATE BILL 743
185	185	b. Pays to the provider or facility a total amount that, incorporating any initial
186	186	payment under subd. 4. a., is equal to the amount by which the rate for a provider
187	187	or facility that is not a participating provider or facility exceeds the cost-sharing
188	188	amount.
189	189	5. The plan counts any cost-sharing payment made by the enrollee for the
190	190	emergency medical services toward any in-network deductible or out-of-pocket
191	191	maximum applied by the plan in the same manner as if the cost-sharing payment
192	192	was made for emergency medical services provided by a participating provider or in
193	193	a participating facility.
194	194	(3) PROVIDER BILLING LIMITATION FOR EMERGENCY MEDICAL SERVICES; AMBULANCE
195	195	SERVICES. A provider of emergency medical services or a facility in which emergency
196	196	medical services are provided that is entitled to payment under sub. (2) may not bill
197	197	or hold liable an enrollee for any amount for the emergency medical service that is
198	198	more than the cost-sharing amount determined under sub. (2) (c) 3. for the
199	199	emergency service. A provider of ambulance services that is not a participating
200	200	provider under an enrollee's defined network plan, preferred provider plan, or
201	201	self-insured governmental plan may not bill or hold liable an enrollee for any
202	202	amount of the ambulance service that is more than the cost-sharing amount that the
203	203	enrollee would be charged if the provider of ambulance services was a participating
204	204	provider under the enrollee's plan.
205	205	(4) NONPARTICIPATING PROVIDER IN PARTICIPATING FACILITY. For items or services
206	206	other than emergency medical services that are provided to an enrollee of a defined
207	207	network plan, preferred provider plan, or self-insured governmental plan by a
208	208	provider that is not a participating provider but is providing services at a
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233	233	JPC:cdc
234	234	SECTION 1 SENATE BILL 743
235	235	participating facility, the plan shall provide coverage for the item or service in
236	236	accordance with all of the following:
237	237	(a) The plan may not impose on an enrollee a cost-sharing requirement for the
238	238	item or service that is greater than the cost-sharing requirement that would have
239	239	been imposed if the item or service was provided by a participating provider.
240	240	(b) Any cost-sharing amount imposed on an enrollee for the item or service is
241	241	calculated as if the total amount that would have been charged for the item or service
242	242	if provided by a participating provider is equal to the amount paid to the provider
243	243	that is not a participating provider as determined by the commissioner.
244	244	(c) No later than 30 days after the provider transmits the bill for services, the
245	245	plan shall send to the provider an initial payment or a notice of denial of payment.
246	246	(d) The plan shall make a total payment directly to the provider that provided
247	247	the item or service to the enrollee that, added to any initial payment described under
248	248	par. (c), is equal to the amount by which the out-of-network rate for the item or
249	249	service exceeds the cost-sharing amount.
250	250	(e) The plan counts any cost-sharing payment made by the enrollee for the item
251	251	or service toward any in-network deductible or out-of-pocket maximum applied by
252	252	the plan in the same manner as if the cost-sharing payment was made for the item
253	253	or service when provided by a participating provider.
254	254	(5) CHARGING FOR SERVICES BY NONPARTICIPATING PROVIDER; NOTICE AND CONSENT.
255	255	(a) Except as provided in par. (c), a provider of an item or service that is entitled to
256	256	payment under sub. (4) may not bill or hold liable an enrollee for any amount for the
257	257	item or service that is more than the cost-sharing amount calculated under sub. (4)
258	258	(b) for the item or service unless the nonparticipating provider provides notice and
259	259	obtains consent in accordance with all of the following:
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285	285	LRB-5183/1
286	286	JPC:cdc
287	287	SECTION 1
288	288	SENATE BILL 743
289	289	1. The notice states that the provider is not a participating provider in the
290	290	enrollee's defined network plan, preferred provider plan, or self-insured
291	291	governmental plan.
292	292	2. The notice provides a good faith estimate of the amount that the
293	293	nonparticipating provider may charge the enrollee for the item or service involved,
294	294	including notification that the estimate does not constitute a contract with respect
295	295	to the charges estimated for the item or service.
296	296	3. The notice includes a list of the participating providers at the participating
297	297	facility that would be able to provide the item or service and notification that the
298	298	enrollee may be referred to one of those participating providers.
299	299	4. The notice includes information about whether or not prior authorization or
300	300	other care management limitations may be required before receiving an item or
301	301	service at the participating facility.
302	302	5. The notice clearly states that consent is optional and that the patient may
303	303	elect to seek care from an in-network provider.
304	304	6. The notice is worded in plain language.
305	305	7. The notice is available in languages other than English. The commissioner
306	306	shall identify languages for which the notice should be available.
307	307	8. The enrollee provides consent to the nonparticipating provider to be treated
308	308	by the nonparticipating provider, and the consent acknowledges that the enrollee
309	309	has been informed that the charge paid by the enrollee may not meet a limitation that
310	310	the enrollee's defined network plan, preferred provider plan, or self-insured
311	311	governmental plan places on cost sharing, such as an in-network deductible.
312	312	9. A signed copy of the consent described under subd. 8. is provided to the
313	313	enrollee.
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339	339	JPC:cdc
340	340	SECTION 1 SENATE BILL 743
341	341	(b) To be considered adequate, the notice and consent under par. (a) shall meet
342	342	one of the following requirements, as applicable:
343	343	1. If the enrollee makes an appointment for the item or service at least 72 hours
344	344	before the day on which the item or service is to be provided, any notice under par.
345	345	(a) shall be provided to the enrollee at least 72 hours before the day of the
346	346	appointment at which the item or service is to be provided.
347	347	2. If the enrollee makes an appointment for the item or service less than 72
348	348	hours before the day on which the item or service is to be provided, any notice under
349	349	par. (a) shall be provided to the enrollee on the day that the appointment is made.
350	350	(c) A provider of an item or service that is entitled to payment under sub. (4)
351	351	may not bill or hold liable an enrollee for any amount for an ancillary item or service
352	352	that is more than the cost-sharing amount determined under sub. (4) (b) for the item
353	353	or service, unless the commissioner specifies by rule that the provider may balance
354	354	bill for the ancillary item or service, if the item or service is any of the following:
355	355	1. Related to an emergency medical service.
356	356	2. Anesthesiology.
357	357	3. Pathology.
358	358	4. Radiology.
359	359	5. Neonatology.
360	360	6. An item or service provided by an assistant surgeon, hospitalist, or
361	361	intensivist.
362	362	7. A diagnostic service, including a radiology or laboratory service.
363	363	8. An item or service provided by a specialty practitioner that the commissioner
364	364	specifies by rule.
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390	390	JPC:cdc
391	391	SECTION 1
392	392	SENATE BILL 743
393	393	9. An item or service provided by a nonparticipating provider when there is no
394	394	participating provider that can furnish the item or service at the participating
395	395	facility.
396	396	(d) Any notice and consent provided under par. (a) may not extend to items or
397	397	services furnished as a result of unforeseen, urgent medical needs that arise at the
398	398	time the item or service is provided.
399	399	(e) Any consent provided under par. (a) shall be retained by the provider for no
400	400	less than 7 years.
401	401	(6) NOTICE BY PROVIDER OR FACILITY. Beginning no later than January 1, 2024,
402	402	a health care provider or health care facility shall make available, including posting
403	403	on a website, to enrollees in defined network plans, preferred provider plans, and
404	404	self-insured governmental plans notice of the requirements on a provider or facility
405	405	under subs. (3) and (5), of any other applicable state law requirements on the
406	406	provider or facility with respect to charging an enrollee for an item or service if the
407	407	provider or facility does not have a contractual relationship with the plan, and of
408	408	information on contacting appropriate state or federal agencies in the event the
409	409	enrollee believes the provider or facility violates any of the requirements under this
410	410	section or other applicable law.
411	411	(7) NEGOTIATION; DISPUTE RESOLUTION. A provider or facility that is entitled to
412	412	receive an initial payment or notice of denial under sub. (2) (c) 4. a. or (4) (c) may
413	413	initiate, within 30 days of receiving the initial payment or notice of denial, open
414	414	negotiations with the defined network plan, preferred provider plan, or self-insured
415	415	governmental plan to determine a payment amount for an emergency medical
416	416	service or other item or service for a period that terminates 30 days after initiating
417	417	open negotiations. If the open negotiation period under this subsection terminates
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443	443	JPC:cdc
444	444	SECTION 1 SENATE BILL 743
445	445	without determination of a payment amount, the provider, facility, defined network
446	446	plan, preferred provider plan, or self-insured governmental plan may initiate,
447	447	within the 4 days beginning on the day after the open negotiation period ends, the
448	448	independent dispute resolution process as specified by the commissioner. If the
449	449	independent dispute resolution decision maker determines the payment amount,
450	450	the party to the independent dispute resolution process whose amount was not
451	451	selected shall pay the fees for the independent dispute resolution. If the parties to
452	452	the independent dispute resolution reach a settlement on the payment amount, the
453	453	parties to the independent dispute resolution shall equally divide the payment for
454	454	the fees for the independent dispute resolution.
455	455	(8) CONTINUITY OF CARE. (a) In this subsection:
456	456	1. “Continuing care patient” means an individual who is any of the following:
457	457	a. Undergoing a course of treatment for a serious and complex condition from
458	458	a provider or facility.
459	459	b. Undergoing a course of institutional or inpatient care from a provider or
460	460	facility.
461	461	c. Scheduled to undergo nonelective surgery, including receipt of postoperative
462	462	care, from a provider or facility.
463	463	d. Pregnant and undergoing a course of treatment for the pregnancy from a
464	464	provider or facility.
465	465	e. Terminally ill and receiving treatment for the illness from a provider or
466	466	facility.
467	467	2. “Serious and complex condition” means any of the following:
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492	492	JPC:cdc
493	493	SECTION 1
494	494	SENATE BILL 743
495	495	a. In the case of an acute illness, a condition that is serious enough to require
496	496	specialized medical treatment to avoid the reasonable possibility of death or
497	497	permanent harm.
498	498	b. In the case of a chronic illness or condition, a condition that is
499	499	life-threatening, degenerative, potentially disabling, or congenital and requires
500	500	specialized medical care over a prolonged period.
501	501	(b) If an enrollee is a continuing care patient and is obtaining items or services
502	502	from a participating provider or participating facility and the contract between the
503	503	defined network plan, preferred provider plan, or self-insured governmental plan
504	504	and the participating provider or participating facility is terminated or the coverage
505	505	of benefits that include the items or services provided by the participating provider
506	506	or participating facility are terminated by the plan, the plan shall do all of the
507	507	following:
508	508	1. Notify each enrollee of the termination of the contract or benefits and of the
509	509	right for the enrollee to elect to continue transitional care from the provider or facility
510	510	under this subsection.
511	511	2. Provide the enrollee an opportunity to notify the plan of the need for
512	512	transitional care.
513	513	3. Allow the enrollee to elect to continue to have the benefits provided under
514	514	the plan under the same terms and conditions as would have applied to the item or
515	515	service if the termination had not occurred for the course of treatment related to the
516	516	enrollee's status as a continuing care patient beginning on the date on which the
517	517	notice under subd. 1. is provided and ending 90 days after the date on which the
518	518	notice under subd. 1. is provided or the date on which the enrollee is no longer a
519	519	continuing care patient, whichever is earlier.
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546	546	SECTION 1 SENATE BILL 743
547	547	(c) The provisions of s. 609.24 apply to a continuing care patient to the extent
548	548	that s. 609.24 does not conflict with this subsection so as to limit the enrollee's rights
549	549	under this subsection.
550	550	(9) RULE MAKING. The commissioner may promulgate any rules necessary to
551	551	implement this section, including specifying the independent dispute resolution
552	552	process under sub. (7). The commissioner may promulgate rules to modify the list
553	553	of those items and services for which a provider may not balance bill under sub. (5)
554	554	(c).
555	555	(END)
556	556	1
557	557	2
558	558	3
559	559	4
560	560	5
561	561	6
562	562	7
563	563	8
564	564	9