I

104TH CONGRESS

1ST SESSION H. R. 2011

To assure equitable coverage and treatment of emergency services under

health plans.

IN THE HOUSE OF REPRESENTATIVES

JULY 11, 1995

Mr. CARDIN (for himself, Mrs. ROUKEMA, Mr. MCDERMOTT, Mr. TOWNS, Mr.

PALLONE, Ms. RIVERS, Mr. NADLER, Mr. WISE, Mr. LEWIS of Georgia,

Mr. FAZIO of California, Mr. MORAN, Mr. BEILENSON, and Mr. JOHNSON of South Dakota) introduced the following bill; which was referred

to the Committee on Commerce, and in addition to the Committee on

Ways and Means, for a period to be subsequently determined by the

Speaker, in each case for consideration of such provisions as fall within

the jurisdiction of the committee concerned

A BILL

To assure equitable coverage and treatment of emergency

services under health plans.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Access to Emergency Medical Services Act of 1995’’.

6 (b) TABLE OF CONTENTS.—The table of contents of

7 this Act is as follows:
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Sec. 1. Short title.

Sec. 2. Findings; purposes.

Sec. 3. Assuring equitable health plan coverage with respect to emergency services.

Sec. 4. Requirements for medicare and medicaid managed care.

Sec. 5. Effect on State law.

Sec. 6. Enforcement.

Sec. 7. Regulations.

Sec. 8. Definitions.

Sec. 9. Effective dates.

Sec. 10. Report on application to plans including medical savings accounts.

1 SEC. 2. FINDINGS; PURPOSES.

2 (a) FINDINGS.—The Congress finds the following:

3 (1) Federal medicare law requires emergency

4 physicians and other providers to evaluate, treat,

5 and stabilize any individual seeking treatment in a

6 hospital emergency department.

7 (2) This law specifically prohibits emergency

8 physicians from delaying any treatment needed to

9 evaluate or stabilize an individual in order to deter10 mine the health insurance status of the individual.

11 (3) Many health plans routinely deny payment

12 for these Federally-required emergency services fur13 nished to their enrollees, basing such denials on—

14 (A) failure to obtain prior approval of such

15 services from the plan, or

16 (B) an after-the-fact determination that

17 the medical condition identified through the

18 Federally-required evaluation was not an emer19 gency medical condition.
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1 (4) These denials by health plans impose sig2 nificant financial burdens on—

3 (A) their enrollees who, based on symp4 toms that reasonably suggest a medical emer5 gency, prudently seek care in a hospital emer6 gency department, and

7 (B) emergency physicians, the hospital

8 emergency departments, and others involved in

9 furnishing emergency services to the enrollees.

10 (5) These burdens discourage enrollees from

11 seeking emergency care in cases where it is appro12 priate and, ultimately, threaten the financial liveli13 hood of hospital emergency departments in providing

14 emergency services to the entire population, includ15 ing beneficiaries of the medicare and medicaid pro16 grams and of other Federal health care programs.

17 (6) Health plans have engaged in practices that

18 discourage the appropriate use of the 911 emergency

19 telephone number and may adversely impact on the

20 health of enrollees.

21 (b) PURPOSES.—The purposes of this Act are—

22 (1) to require health plans to cover and pay for

23 their fair share for emergency services that hospital

24 emergency departments are required to provide;
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1 (2) to protect health plan enrollees by establish2 ing a uniform definition of emergency medical condi3 tion that is based on the average knowledge of a

4 prudent layperson;

5 (3) to prohibit health plans from requiring prior

6 approval for Federally-required emergency services;

7 and

8 (4) to assure that health plans promote the ap9 propriate use of the 911 emergency telephone num10 ber.

11 SEC. 3. ASSURING EQUITABLE HEALTH PLAN COVERAGE

12 WITH RESPECT TO EMERGENCY SERVICES.

13 (a) PROHIBITION OF CONTRACTUAL LIMITATIONS ON

14 COVERAGE OF EMERGENCY SERVICES.—A health plan

15 that provides any coverage with respect to emergency serv16 ices shall cover emergency services furnished to an enrollee

17 of the plan—

18 (1) without regard to whether or not the pro19 vider furnishing the emergency services has a con20 tractual or other arrangement with the plan for the

21 provision of such services to such enrollees, and

22 (2) without regard to prior authorization.

23 (b) PROHIBITION OF DISCRIMINATORY PAYMENT OR

24 COST-SHARING.—
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1 (1) IN GENERAL.—A health plan that provides

2 any coverage with respect to emergency services—

3 (A) shall determine and make prompt pay4 ment in a reasonable and appropriate amount

5 for such services (including services required to

6 be provided under section 1867 of the Social

7 Security Act), and

8 (B) subject to paragraph (2), may not im9 pose cost-sharing for services furnished in a

10 hospital emergency department that is cal11 culated in a manner (such as the use of a dif12 ferent percentage) that imposes greater cost

13 sharing with respect to such services compared

14 to comparable services furnished in other set15 tings.

16 (2) IMPOSITION OF REASONABLE COPAYMENT

17 PERMITTED.—A health plan may impose a reason18 able copayment (as determined in accordance with

19 standards established by the Secretary) in lieu of co20 insurance to deter inappropriate use of services of

21 hospital emergency departments.

22 (c) ASSURING TIMELINESS OF PRIOR AUTHORIZA23 TION DETERMINATION FOR NEEDED CARE IDENTIFIED

24 IN INITIAL EVALUATION.—

25 (1) IN GENERAL.—
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1 (A) ACCESS TO PROCESS.—If an enrollee

2 of a health plan receives emergency services

3 from an emergency department pursuant to a

4 screening evaluation conducted by a treating

5 physician or other emergency department per6 sonnel and pursuant to the evaluation such phy7 sician or personnel identifies items and services

8 (other than emergency services) promptly need9 ed by the enrollee, the health plan shall provide

10 access 24 hours a day, 7 days a week, to such

11 persons as may be authorized to make any prior

12 authorization determinations respecting cov13 erage of such promptly needed items and serv14 ices.

15 (B) DEEMED APPROVAL.—A health plan is

16 deemed to have approved a request for a prior

17 authorization for such promptly needed items

18 and services if such physician or other person19 nel—

20 (i) has attempted to contact such a

21 person for authorization—

22 (I) to provide an appropriate re23 ferral for the items and services, or

24 (II) to provide the items and

25 services to the enrollee,
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1 and access to the person has not been pro2 vided (as required under subparagraph

3 (A)), or

4 (ii) has requested such authorization

5 from such a person and the person has not

6 denied the authorization within 30 minutes

7 after the time the request is made.

8 (2) REFERRAL BY PHYSICIAN TO HOSPITAL

9 EMERGENCY DEPARTMENT DEEMED PRIOR AUTHOR10 IZATION.—If a physician (or, in the case of a man11 aged care plan, a participating physician or other

12 person authorized to make prior authorization deter13 minations for the plan) refers an enrollee to a hos14 pital emergency department for evaluation or treat15 ment, a request for prior authorization of the items

16 and services reasonably furnished the enrollee pursu17 ant to such referral shall be deemed to have been

18 made and approved.

19 (3) EFFECT OF APPROVAL.—

20 (A) IN GENERAL.—Approval of a request

21 for a prior authorization determination (includ22 ing a deemed approval under paragraph (1) or

23 (2)) shall be treated as approval of any health

24 care items and services required to treat the

25 medical condition identified pursuant to a
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1 screening evaluation referred to in paragraph

2 (1)(A).

3 (B) PAYMENT.—A health plan may not

4 subsequently deny or reduce payment for an

5 item or service furnished pursuant to such an

6 approval unless the approval was based on in7 formation about the medical condition of an en8 rollee that was fraudulent.

9 (d) ENCOURAGING APPROPRIATE USE OF 911 EMER10 GENCY TELEPHONE NUMBER.—A health plan—

11 (1) shall include, in any educational materials

12 the plan makes available to its enrollees on the pro13 cedures for obtaining emergency services—

14 (A) a statement that it is appropriate for

15 an enrollee to use the 911 emergency telephone

16 number for an emergency medical condition (as

17 defined in section 8(3)), and

18 (B) an explanation of what is an emer19 gency medical condition;

20 (2) shall not discourage appropriate use of the

21 911 emergency telephone number by enrollees with

22 emergency medical conditions; and

23 (3) shall not deny coverage or payment for an

24 item or service solely on the basis that an enrollee
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1 uses the 911 emergency telephone number to sum2 mon treatment for an emergency medical condition.

3 SEC. 4. REQUIREMENTS FOR MEDICARE AND MEDICAID

4 MANAGED CARE.

5 (a) MEDICARE.—Subparagraph (B) of section

6 1876(c)(4) of the Social Security Act (42 U.S.C.

7 1395mm(c)(4)) is amended to read as follows:

8 ‘‘(B) meets the requirements of section 3 of the

9 Access to Emergency Medical Care Act of 1995 with

10 respect to enrollees of the plan who are enrolled

11 under this section.’’.

12 (b) MEDICAID.—Title XIX of the Social Security Act

13 (42 U.S.C. 1396 et seq.) is amended by inserting after

14 section 1908 the following new section:

15 ‘‘ACCESS TO EMERGENCY SERVICES FOR INDIVIDUALS

16 ENROLLED IN MANAGED CARE PLAN

17 ‘‘SEC. 1909. (a) IN GENERAL.—A state plan may not

18 be approved under this title unless the plan requires each

19 managed care plan providing (or arranging for the provi20 sion of) health care items and services to individuals who

21 are eligible for medical assistance and enrolled with the

22 managed care plan to comply with the requirements of sec23 tion 3 of the Access to Emergency Medical Care Act of

24 1995 with respect to such individuals.
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1 ‘‘(b) WAIVERS PROHIBITED.—The requirement of

2 subsection (a) may not be waived under section 1115 or

3 section 1915(b).

4 ‘‘(c) MANAGED CARE PLAN.—For purposes of this

5 section, the term ‘managed care plan’ means a health plan

6 that provides or arranges for the provision health care

7 items and services to enrollees primarily through partici8 pating physicians and providers.’’.

9 SEC. 5. EFFECT ON STATE LAW.

10 (a) PREEMPTION.—Nothing in this Act shall be con11 strued as preempting or otherwise superseding any provi12 sion of State law unless such provision directly conflicts

13 with this Act.

14 (b) CONSUMER PROTECTIONS.—A provision of State

15 law shall not be considered to conflict directly with this

16 Act if the provision provides the enrollees of health plans

17 with protections that exceed the protections of this Act.

18 SEC. 6. ENFORCEMENT.

19 (a) CIVIL MONEY PENALTIES.—A health plan that

20 violates a requirement of section 3 shall be subject to a

21 civil money penalty of not more than the greatest of—

22 (1) $10,000 for each such violation;

23 (2) in the case of a violation of section 3, 3

24 times the amount that the health plan would have
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1 paid for items and services if the plan had not vio2 lated such section; or

3 (3) in the case of a pattern of repeated and

4 substantial violations, $1,000,000.

5 (b) PROCEDURES.—

6 (1) IN GENERAL.—The provisions of section

7 1128A of the Social Security Act (other than sub8 sections (a) and (b)) shall apply to a civil money

9 penalty under this section in the same manner as

10 such provisions apply with respect to a penalty or

11 proceeding under section 1128A(a) of such Act.

12 (2) CORRECTIVE ACTION.—In determining the

13 amount or scope of any civil money penalty under

14 this section, the Secretary shall take into account

15 whether a health plan has taken corrective action,

16 such as—

17 (A) payment for items and services for

18 which coverage or payment has been denied in

19 violation of a requirement of section 3, and

20 (B) establishment of policies and proce21 dures to prevent the same type of violation from

22 occurring in the future.

23 (c) INDEMNIFICATION.—The Secretary may, out of

24 any civil money penalty collected pursuant to this section,

25 make a payment to an enrollee or provider (as appro-
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1 priate) in an amount equal to the amount a health plan

2 would have paid for an item or service (if any) if the plan

3 had not denied coverage or payment for such item or serv4 ice in violation of section 3.

5 (d) VIOLATIONS.—For purposes of subsection (a),

6 the Secretary shall treat at least the following acts or

7 omissions as violations of section 3:

8 (1) COVERAGE OF EMERGENCY SERVICES.—

9 Failure to cover emergency services in violation of

10 section 3(a).

11 (2) FAILURE TO PROVIDE FOR PAYMENT.—

12 Failure to provide for payment for emergency serv13 ices in violation of section 3(b)(1)(A).

14 (3) IMPROPER COST SHARING.—Imposition of

15 cost sharing in violation of section 3(b)(1)(B).

16 (4) ACCESS TO PRIOR AUTHORIZATION.—Fail17 ure to provide access to prior authorization deter18 minations in violation of section 3(c)(1)(A).

19 (4) DEEMED APPROVAL.—Failure to pay for

20 services that are deemed to be approved under sec21 tion 3(c).

22 (5) EDUCATIONAL MATERIALS.—Failure to in23 clude educational materials as required by section

24 3(d)(1).
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1 (6) USE OF 911.—Discouraging the appropriate

2 use of the 911 emergency telephone number or de3 nial of payment in violation of paragraph (2) or (3)

4 of section 3(d).

5 SEC. 7. REGULATIONS.

6 The Secretary shall issue such rules and regulations

7 as may be necessary to carry out the provisions of this

8 Act.

9 SEC. 8. DEFINITIONS.

10 For purposes of this Act:

11 (1) COST-SHARING.—The term ‘‘cost-sharing’’

12 means any deductible, coinsurance amount,

13 copayment, or other out-of-pocket payment that an

14 enrollee is responsible for paying with respect to a

15 health care item or service covered under a health

16 plan.

17 (2) EMERGENCY DEPARTMENT.—The term

18 ‘‘emergency department’’ includes, with respect to a

19 hospital, a trauma center in the hospital if the cen20 ter—

21 (A) is designated under section 1213 of

22 the Public Health Service Act, or

23 (B) is in a State that has not made such

24 designations and is determined by the Secretary
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1 to meet the standards under such section for

2 such designation.

3 (3) EMERGENCY MEDICAL CONDITION.—The

4 term ‘‘emergency medical condition’’ means a medi5 cal condition, the onset of which is sudden, that

6 manifests itself by symptoms of sufficient severity,

7 including severe pain, that a prudent layperson, who

8 possesses an average knowledge of health and medi9 cine, could reasonably expect the absence of imme10 diate medical attention to result in—

11 (A) placing the person’s health in serious

12 jeopardy,

13 (B) serious impairment to bodily functions,

14 or

15 (C) serious dysfunction of any bodily organ

16 or part.

17 (4) EMERGENCY SERVICES.—The term ‘‘emer18 gency services’’ means—

19 (A) health care items and services fur20 nished in the emergency department of a hos21 pital, and

22 (B) ancillary services routinely available to

23 such department,
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1 to the extent they are required to evaluate and treat

2 an emergency medical condition (as defined in para3 graph (3)) until the condition is stabilized.

4 (5) ENROLLEE.—The term ‘‘enrollee’’ means,

5 with respect to a health plan, an individual enrolled

6 with the health plan.

7 (6) HEALTH PLAN.—

8 (A) IN GENERAL.—The term ‘‘health plan’’

9 refers to any plan or arrangement (other than

10 a plan or arrangement described in subpara11 graph (B)) that provides, or pays the cost of,

12 health benefits, whether through insurance, re13 imbursement, or otherwise.

14 (B) EXCEPTION.— A plan or arrangement

15 is described in this subparagraph if it is:

16 (i) Coverage only for accidental death

17 or dismemberment.

18 (ii) Coverage providing wages or pay19 ments in lieu of wages for any period dur20 ing which the employee is absent from

21 work on account of sickness or injury.

22 (iii) A Medicare supplemental policy

23 (as defined in section 1882(g)(1) of the

24 Social Security Act).
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1 (iv) Coverage issued as a supplement

2 to liability insurance.

3 (v) Worker’s compensation or similar

4 insurance.

5 (vi) Automobile medical-payment in6 surance.

7 (vii) Coverage for a specified disease

8 or illness.

9 (viii) A long-term care policy.

10 (ix) A Federally-funded health care

11 program (except when such program con12 tracts with a health plan to provide items

13 and services to individuals eligible for ben14 efits under the program).

15 (7) MANAGED CARE PLAN.—The term ‘‘man16 aged care plan’’ means a health plan that provides

17 or arranges for the provision of health care items

18 and services to enrollees primarily through partici19 pating physicians and providers.

20 (8) PARTICIPATING.—The term ‘‘participating’’

21 means, with respect to a physician or provider, a

22 physician or provider that furnishes health care

23 items and services to enrollees of managed care plan

24 under an agreement with the plan.
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1 (9) PRIOR AUTHORIZATION DETERMINATION.—

2 The term ‘‘prior authorization determination’’

3 means, with respect to health care items and serv4 ices for which coverage may be provided under a

5 health plan, a determination, before the provision of

6 the items and services and as a condition of coverage

7 of the items and services under the plan, that cov8 erage will be provided for the items and services

9 under the plan.

10 (10) SECRETARY.—The term ‘‘Secretary’’

11 means the Secretary of Health and Human Services.

12 (11) STABILIZED.—The term ‘‘stabilized’’

13 means, with respect to an emergency medical condi14 tion, that no material deterioration of the condition

15 is likely, within reasonable medical probability, to re16 sult or occur before an individual can be transferred

17 in compliance with the requirements of section 1867

18 of the Social Security Act.

19 (12) 911 EMERGENCY TELEPHONE NUMBER.—

20 The term ‘‘911 emergency telephone number’’ in21 cludes, in the case of a geographic area where 911

22 is not in use for emergencies, such other telephone

23 number as is in use for emergencies.
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1 SEC. 9. EFFECTIVE DATES.

2 (a) IN GENERAL.—This Act and the amendments

3 made by this Act shall become effective on the earlier of—

4 (1) 30 days after the date the Secretary issues

5 regulations pursuant to subsection (c), or

6 (2) 210 days after the date of the enactment of

7 this Act (without regard to whether such regulations

8 have been issued by such date).

9 (b) APPLICATION.—The provisions of section 3 (other

10 than paragraphs (1) and (2) of subsection (d)) shall apply

11 to items and services furnished on or after the effective

12 date described in subsection (a).

13 (c) DEADLINE FOR REGULATIONS.—The Secretary

14 shall issue regulations to implement this Act and the

15 amendments made by this Act not later than 6 months

16 after the date of the enactment of this Act. Such regula17 tions may take effect on a final basis at the time of publi18 cation, subject to revision based on subsequent public com19 ment.

20 SEC. 10. REPORT ON APPLICATION TO PLANS INCLUDING

21 MEDICAL SAVINGS ACCOUNTS.

22 (a) STUDY.—The Secretary shall provide for a study

23 of the application of this Act in the case of health plans

24 composed of a high-deductible, catastrophic health insur25 ance policy with a medical savings account. In particular,

26 the study shall evaluate the feasibility and desirability of
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1 requiring the application of amounts in such an account

2 toward costs in providing emergency services and in pro3 viding promptly needed items and services identified in

4 connection with the provision of emergency services.

5 (b) REPORT.—The Secretary shall submit to Con6 gress a report on such study not later than 18 months

7 after the date of the enactment of this Act.

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