II 

116TH CONGRESS 

1ST SESSION S. 1266 

To amend the Employee Retirement Income Security Act of 1974 to protect 

patients from surprise medical bills. 

IN THE SENATE OF THE UNITED STATES 

MAY 1, 2019 

Mr. SCOTT of Florida introduced the following bill; which was read twice and 

referred to the Committee on Health, Education, Labor, and Pensions 

A BILL 

To amend the Employee Retirement Income Security Act 

of 1974 to protect patients from surprise medical bills. 

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. 

4 This Act may be cited as the ‘‘Protecting Patients 

5 from Surprise Medical Bills Act’’. 

6 SEC. 2. PROHIBITION ON SURPRISE MEDICAL BILLING. 

7 Subpart B of part 7 of title I of the Employee Retire8 ment Income Security Act of 1974 (29 U.S.C. 1185 et 

9 seq.) is amended by adding at the end the following: 


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1 ‘‘SEC. 716. PROHIBITION ON SURPRISE MEDICAL BILLING. 

2 ‘‘(a) DEFINITIONS.—In this section: 

3 ‘‘(1) BALANCE BILL.—The term ‘balance bill’ 

4 means the collection or attempted collection from a 

5 participant or beneficiary of any amount in excess of 

6 the applicable copayments, coinsurance, or deduct7 ible for services covered under the participant or 

8 beneficiary’s group health plan. 

9 ‘‘(2) EMERGENCY MEDICAL CONDITION.—The 

10 term ‘emergency medical condition’ means the condi11 tion described in section 2719A(b)(2)(A) of the Pub12 lic Health Service Act. 

13 ‘‘(3) EMERGENCY SERVICES.—The term ‘emer14 gency services’ means the services described in sec15 tion 2719A(b)(2)(B) of the Public Health Service 

16 Act. 

17 ‘‘(4) EMERGENCY SERVICES PROVIDER.—The 

18 term ‘emergency services provider’ means a facility 

19 or facility-based provider that bills a participant or 

20 beneficiary for emergency services. 

21 ‘‘(5) FACILITY.—The term ‘facility’ means an 

22 entity providing health care services, as licensed or 

23 authorized by a State. 

24 ‘‘(6) FACILITY-BASED PROVIDER.—The term 

25 ‘facility-based provider’ means a physician, health 

26 care professional, or entity that has entered into an 


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1 agreement with a facility to provide health care serv2 ices to patients of that facility. 

3 ‘‘(b) EMERGENCY SERVICES.— 

4 ‘‘(1) PROHIBITION ON BALANCE BILLING.—A 

5 self-insured group health plan shall be solely liable 

6 for making payments to an emergency services pro7 vider for emergency services covered under the plan 

8 that are provided to a participant or beneficiary, and 

9 such participant or beneficiary shall not be liable to 

10 the emergency services provider for any amount for 

11 such services other than the applicable copayment, 

12 coinsurance, or deductible amount required under 

13 the plan for covered emergency services. Emergency 

14 service providers shall not balance bill a participant 

15 or beneficiary under a self-insured group health plan 

16 for any covered emergency services provided to such 

17 participant or beneficiary. 

18 ‘‘(2) COST SHARING LIMITATION AND PRIOR

19 AUTHORIZATION.—If a self-insured group health 

20 plan provides coverage for any benefits with respect 

21 to emergency services, such coverage shall be in ac22 cordance with the provisions of section 2719A(b) of 

23 the Public Health Service Act and— 

24 ‘‘(A) if such services are provided by an 

25 out-of-network provider, the cost-sharing reVerDate Sep 11 2014 21:19 May 07, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1266.IS S1266

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1 quirements (including any deductible amount 

2 and the out-of-pocket limit) applicable to such 

3 services shall be the same as the cost-sharing 

4 requirement that would apply if such services 

5 were provided by an in-network provider; 

6 ‘‘(B) prior authorization shall not be re7 quired for pre-hospital transport or treatment; 

8 and 

9 ‘‘(C) payment by the plan shall be made 

10 directly to the emergency services provider. 

11 ‘‘(c) COVERED NON-EMERGENCY SERVICES.—Facil12 ity-based providers shall not balance bill a patient for cov13 ered non-emergency services if the services are provided 

14 at an in-network facility and the participant or beneficiary 

15 did not have the ability or opportunity to select to receive 

16 such services from an in-network provider. 

17 ‘‘(d) REIMBURSEMENTS FOR OUT-OF-NETWORK

18 PAYMENTS.—A self-insured group health plan shall reim19 burse a health care provider for out-of-network emergency 

20 and non-emergency services described in subsections (b) 

21 and (c) based on one of the following payment methodolo22 gies: 

23 ‘‘(1) The amount of the claim made by the pro24 vider for such services. 


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1 ‘‘(2) The usual and customary amount charged 

2 by the provider for similar services in the community 

3 where the services were provided. 

4 ‘‘(3) The amount mutually agreed to by the 

5 plan and the provider during the 60-day period after 

6 the date on which the claim is submitted. 

7 ‘‘(e) VOLUNTARY BINDING ARBITRATION.— 

8 ‘‘(1) IN GENERAL.—If a self-insured group 

9 health plan and health care provider are unable to 

10 resolve a dispute with respect to billing for services 

11 described in subsection (b) or (c), such provider may 

12 voluntarily initiate binding arbitration with such 

13 plan under this subsection. The Secretary shall es14 tablish by rule methods of aggregation for claim dis15 putes submitted to voluntary binding arbitration 

16 under this subsection. 

17 ‘‘(2) ARBITRATION ORGANIZATIONS.— 

18 ‘‘(A) IN GENERAL.—The Secretary shall 

19 enter into contracts with outside organizations 

20 to conduct timely, voluntary binding arbitration 

21 proceedings under this subsection. To be eligi22 ble for such a contract, an organization shall 

23 have at least 5 years of experience serving as a 

24 neutral party in complex dispute resolution pro25 ceedings. 


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1 ‘‘(B) LIMITATION.—An organization shall 

2 not be eligible to enter into a contract under 

3 subparagraph (A) if the organization has been 

4 employed by, consulted for, or otherwise had a 

5 business relationship (other than the receipt of 

6 arbitration fees) with a health plan, health in7 surance issuer, facility, or health care profes8 sional during the 3-year period immediately 

9 preceding the effective date of the contract with 

10 the Secretary or during the term of such con11 tract. 

12 ‘‘(C) ARBITRATOR.—An arbitrator may 

13 not be assigned by an organization to resolve a 

14 dispute under this paragraph if the arbitrator 

15 has been employed by, consulted for, or other16 wise had a business relationship (other than the 

17 receipt of arbitration fees) with a health plan, 

18 health insurance issuer, facility, or health care 

19 professional during the 3-year period imme20 diately preceding the request for arbitration. 

21 ‘‘(3) ELIGIBILITY.—To be eligible for voluntary 

22 binding arbitration under this subsection the claim 

23 involved shall— 


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1 ‘‘(A) in the case of a claim relating to fa2 cility health care services, be not less than 

3 $3,000; and 

4 ‘‘(B) in the case of a claim relating to pro5 fessional services, be not less than $500. 

6 Such amounts shall be adjusted by the Secretary 

7 each year by the percentage increase in the con8 sumer price index. 

9 ‘‘(4) PROCEDURES.—The following procedures 

10 shall apply during a voluntary arbitration proceeding 

11 under this subsection: 

12 ‘‘(A) The plan or provider involved may 

13 make an offer to settle the disputed claim. The 

14 party to whom such an offer is directed shall 

15 respond to such offer within 15 days after re16 ceipt of the offer. 

17 ‘‘(B) If the party receiving an offer to set18 tle under paragraph (A) does not accept such 

19 offer, and the arbitrator issues a final order 

20 with respect to the disputed claim that is more 

21 than 90 percent or less than 110 percent of the 

22 offer amount, the party receiving the offer is 

23 deemed a non-prevailing party for purpose of 

24 paragraph (5). 


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1 ‘‘(C) A final order under this paragraph is 

2 subject to judicial review under this Act. 

3 ‘‘(D) All parties to a dispute that is sub4 ject to arbitration under this subsection may 

5 agree to settle claim at any time, for any 

6 amount, regardless of whether an offer to settle 

7 was made or rejected. 

8 ‘‘(5) REVIEW COSTS.— 

9 ‘‘(A) IN GENERAL.—The entity that does 

10 not prevail under an arbitrator’s final order 

11 under voluntary binding arbitration under this 

12 subsection shall pay the review costs. 

13 ‘‘(B) APPORTIONMENT OF COSTS.—In the 

14 case that both parties to voluntary binding arbi15 tration under this subsection prevail in part, 

16 the review costs shall be apportioned among the 

17 parties in proportion to the final judgment. The 

18 apportionment shall be based on the disputed 

19 claim amount. 

20 ‘‘(C) FAILURE TO PAY.—If a party to vol21 untary binding arbitration under this subsection 

22 fails to pay any amount of the ordered review 

23 costs within 35 days after the arbitrator’s final 

24 order, the party shall be subject to a penalty of 


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1 $500 for each day that such amount is not 

2 paid. 

3 ‘‘(f) NETWORK TRANSPARENCY.—A self-insured 

4 group health plan shall— 

5 ‘‘(1) not later than 1 year after the date of en6 actment of this section, publish on their Internet 

7 website a list of network providers, and update such 

8 list on a monthly basis; and 

9 ‘‘(2) not later than 1 year after the date of en10 actment of this section, and annually thereafter, pro11 vide an annual notification to participants and bene12 ficiaries concerning the potential for balance billing 

13 when using out-of-network providers.’’. 

Æ 


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