I 
116TH CONGRESS 
2D SESSION 
H. R. 5826 
To amend title XXVII of the Public Health Service Act, the Employee 
Retirement Income Security Act of 1974, the Internal Revenue Code 
of 1986, and title XI of the Social Security Act to prevent certain 
cases of out-of-network surprise medical bills, strengthen health care 
consumer protections, and improve health care information transparency, 
and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
FEBRUARY 10, 2020 
Mr. NEAL (for himself, Mr. BRADY, Mr. SUOZZI, Mr. LAHOOD, Mr. HOLDING, 
Mr. KELLY of Pennsylvania, Mr. ESTES, Mr. THOMPSON of California, 
Mr. BEYER, Ms. SHALALA, Mr. MORELLE, Mr. LARSON of Connecticut, 
Ms. SCHRIER, Mr. SCHNEIDER, Mr. DANNY K. DAVIS of Illinois, Mr. 
EVANS, Mr. LEWIS, Mr. HIGGINS of New York, Mr. NUNES, Mr. SMITH 
of Nebraska, Mr. FERGUSON, Mr. WENSTRUP, Mr. RICE of South Caro-
lina, Mrs. WALORSKI, Mr. SCHWEIKERT, Mr. REED, Mr. ARRINGTON, 
Mr. MARCHANT, Mr. BUCHANAN, Mr. THOMPSON of Pennsylvania, Mr. 
KILDEE, and Mr. SMITH of Missouri) introduced the following bill; which 
was referred to the Committee on Energy and Commerce, and in addition 
to the Committees on Ways and Means, Education and Labor, and 
Transportation and Infrastructure, for a period to be subsequently deter-
mined by the Speaker, in each case for consideration of such provisions 
as fall within the jurisdiction of the committee concerned 
A BILL 
To amend title XXVII of the Public Health Service Act, 
the Employee Retirement Income Security Act of 1974, 
the Internal Revenue Code of 1986, and title XI of 
the Social Security Act to prevent certain cases of out- 
of-network surprise medical bills, strengthen health care 
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consumer protections, and improve health care informa-
tion transparency, and for other purposes. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 
(a) SHORT TITLE.—This Act may be cited as the 
‘‘Consumer Protections Against Surprise Medical Bills 
Act of 2020’’. 
(b) TABLE OF CONTENTS.—The table of contents of 
this Act is as follows: 
Sec. 1. Short title; table of contents. 
Sec. 2. Consumer protections through requirements on health plans to prevent 
surprise medical bills for emergency services. 
Sec. 3. Consumer protections through requirements on health plans to prevent 
surprise medical bills for non-emergency services performed by 
nonparticipating providers at certain participating facilities. 
Sec. 4. Consumer protections through application of health plan external review 
in cases of certain surprise medical bills. 
Sec. 5. Consumer protections through health plan transparency requirements. 
Sec. 6. Consumer protections through health plan requirement for fair and hon-
est advance cost estimate. 
Sec. 7. Determination through open negotiation and mediation of out-of-net-
work rates to be paid by health plans. 
Sec. 8. Prohibiting balance billing practices by providers for emergency services, 
for services furnished by nonparticipating provider at partici-
pating facility, and in certain cases of misinformation. 
Sec. 9. Additional consumer protections. 
Sec. 10. Reporting requirements regarding air ambulance services. 
Sec. 11. GAO report on effects of legislation. 
Sec. 12. Transitional rule allowing deduction for surprise billing expenses below 
AGI floor. 
SEC. 2. CONSUMER PROTECTIONS THROUGH REQUIRE-
MENTS ON HEALTH PLANS TO PREVENT SUR-
PRISE MEDICAL BILLS FOR EMERGENCY 
SERVICES. 
(a) PHSA AMENDMENTS.— 
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(1) IN GENERAL.—Section 2719A of the Public 
Health Service Act (42 U.S.C. 300gg–19a) is 
amended— 
(A) in subsection (b)— 
(i) in the heading, by striking ‘‘COV-
ERAGE’’ and inserting ‘‘COST-SHARING 
AND PAYMENT’’; 
(ii) in paragraph (1)— 
(I) in the matter preceding sub-
paragraph (A)— 
(aa) by striking ‘‘a group 
health plan, or a health insurance 
issuer offering group or indi-
vidual health insurance issuer,’’ 
and inserting ‘‘a health plan’’; 
(bb) by inserting ‘‘and, for 
plan year 2022 or a subsequent 
plan year, with respect to emer-
gency services in an independent 
freestanding emergency depart-
ment’’ after ‘‘emergency depart-
ment of a hospital’’; 
(cc) by striking ‘‘the plan or 
issuer’’ and inserting ‘‘the plan’’; 
and 
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(dd) by striking ‘‘(as defined 
in paragraph (2)(B))’’; 
(II) in subparagraph (B), by in-
serting ‘‘or a participating facility 
that is an emergency department of a 
hospital or an independent free-
standing emergency department (in 
this subsection referred to as a ‘par-
ticipating emergency facility’)’’ after 
‘‘participating provider’’; and 
(III) in subparagraph (C)— 
(aa) in the matter preceding 
clause (i), by inserting ‘‘by a 
nonparticipating provider or a 
nonparticipating facility that is 
an emergency department of a 
hospital or an independent free-
standing emergency department’’ 
after ‘‘enrollee’’; 
(bb) by striking clause (i); 
(cc) by striking ‘‘(ii)(I) such 
services’’ and inserting ‘‘(i) such 
services’’; 
(dd) by striking ‘‘where the 
provider of services does not have 
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a contractual relationship with 
the plan for the providing of 
services’’; 
(ee) by striking ‘‘emergency 
department 
services 
received 
from providers who do have such 
a contractual relationship with 
the plan; and’’ and inserting 
‘‘emergency 
services 
received 
from participating providers and 
participating emergency facilities 
with respect to such plan;’’; 
(ff) by striking ‘‘(II) if such 
services’’ and all that follows 
through ‘‘were provided in-net-
work’’ and inserting the fol-
lowing: 
‘‘(ii) the cost-sharing requirement is 
not greater than the requirement that 
would apply if such services were furnished 
by a participating provider or a partici-
pating emergency facility, as applicable;’’; 
and 
(gg) by adding at the end 
the following new clauses: 
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‘‘(iii) such cost-sharing requirement is 
calculated as if the contracted rate for 
such services if furnished by a partici-
pating provider or a participating emer-
gency facility were equal to the recognized 
amount for such services; 
‘‘(iv) the health plan pays to such pro-
vider or facility, respectively, the amount 
by which the out-of-network rate for such 
services exceeds the cost-sharing amount 
for such services (as determined in accord-
ance with clauses (ii) and (iii)); and 
‘‘(v) any deductible or out-of-pocket 
maximum that would apply if such services 
were furnished by a participating provider 
or a participating emergency facility shall 
be the deductible or out-of-pocket max-
imum that applies; and’’; and 
(iii) by striking paragraph (2) and in-
serting the following new paragraph: 
‘‘(2) AUDIT PROCESS AND RULEMAKING PROC-
ESS FOR MEDIAN CONTRACTED RATES.— 
‘‘(A) AUDIT PROCESS.— 
‘‘(i) IN
GENERAL.—Not later than 
July 1, 2021, the Secretary, in coordina-
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tion with the Secretary of the Treasury 
and the Secretary of Labor and in con-
sultation with the National Association of 
Insurance Commissioners, shall establish 
through rulemaking a process, in accord-
ance with clause (ii), under which health 
plans are audited by the Secretary to en-
sure that— 
‘‘(I) such plans are in compliance 
with the requirement of applying a 
median contracted rate under this sec-
tion; and 
‘‘(II) that such median con-
tracted rate so applied satisfies the 
definition under subsection (k)(8) 
with respect to the year involved. 
‘‘(ii) AUDIT
SAMPLES.—Under the 
process established pursuant to clause (i), 
the Secretary— 
‘‘(I) shall conduct audits de-
scribed in such clause of a sample of 
health plans; and 
‘‘(II) may audit any health plan 
if the Secretary has received any com-
plaint about such plan that involves 
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the compliance of the plan with the 
requirement described in such clause. 
‘‘(B) RULEMAKING.—Not later than July 
1, 2021, the Secretary, in coordination with the 
Secretary of Labor and the Secretary of the 
Treasury, shall establish through rulemaking— 
‘‘(i) the methodology the sponsor or 
issuer of a health plan shall use to deter-
mine the median contracted rate, which 
shall account for relevant payment adjust-
ments that take into account facility type 
that are otherwise taken into account for 
purposes of determining payment amounts 
with respect to participating facilities; and 
‘‘(ii) the information such sponsor or 
issuer shall share with the nonparticipating 
provider involved when making such a de-
termination.’’; and 
(B) by adding at the end the following new 
subsection: 
‘‘(k) DEFINITIONS.—For purposes of this section: 
‘‘(1) CONTRACTED
RATE.—The term ‘con-
tracted rate’ means, with respect to a health plan 
and a health care provider or health care facility fur-
nishing an item or service to a beneficiary, partici-
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pant, or enrollee of such plan, the agreed upon total 
payment amount (inclusive of any cost-sharing) to 
such provider or facility for such item or service. 
‘‘(2) DURING
A
VISIT.—The term ‘during a 
visit’ shall, with respect to an individual who is fur-
nished items and services at a participating facility, 
include equipment and devices, telemedicine services, 
imaging services, laboratory services, preoperative 
and postoperative services, and such other items and 
services as the Secretary may specify furnished to 
such individual, regardless of whether or not the 
provider furnishing such items or services is at the 
facility. 
‘‘(3) EMERGENCY
DEPARTMENT
OF
A
HOS-
PITAL.—The term ‘emergency department of a hos-
pital’ includes a hospital outpatient department that 
provides emergency services. 
‘‘(4) EMERGENCY
MEDICAL
CONDITION.—The 
term ‘emergency medical condition’ means a medical 
condition manifesting itself by acute symptoms of 
sufficient severity (including severe pain) such that 
a prudent layperson, who possesses an average 
knowledge of health and medicine, could reasonably 
expect the absence of immediate medical attention to 
result in a condition described in clause (i), (ii), or 
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‘‘(ii) Such individual is in a condition 
to receive (as determined in accordance 
with guidance issued by the Secretary) the 
information described in clause (i) and to 
confirm notice of receipt of such notice, in 
accordance with applicable State law. 
‘‘(iii) The individual signs and dates 
such notice confirming receipt of the notice 
before such item or service is furnished. 
‘‘(6) HEALTH PLAN.—The term ‘health plan’ 
means a group health plan and health insurance cov-
erage offered by a heath insurance issuer in the 
group or individual market and includes a grand-
fathered health plan (as defined in section 1251(e) 
of the Patient Protection and Affordable Care Act). 
‘‘(7) INDEPENDENT
FREESTANDING
EMER-
GENCY DEPARTMENT.—The term ‘independent free-
standing emergency department’ means a health 
care facility that— 
‘‘(A) is geographically separate and dis-
tinct and licensed separately from a hospital 
under applicable State law; and 
‘‘(B) provides emergency services. 
‘‘(8) MEDIAN CONTRACTED RATE.— 
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‘‘(A) IN
GENERAL.—Subject to subpara-
graph (B), the term ‘median contracted rate’ 
means, with respect to a health plan— 
‘‘(i) for an item or service furnished 
during 2022, the median of the contracted 
rates recognized by the sponsor or issuer 
of such plan (determined with respect to 
all such plans of such sponsor or such 
issuer that are within the same line of 
business (as specified in subparagraph (C)) 
as the plan involved) as the total maximum 
payment under such plans in 2019 for the 
same or a similar item or service that is 
provided by a provider or facility in the 
same or similar specialty and provided in 
the geographic region (established (and up-
dated, as appropriate) by the Secretary, in 
consultation with the National Association 
of Insurance Commissioners) in which the 
item or service is furnished, consistent with 
the methodology established by the Sec-
retary under subsection (b)(2)(B), in-
creased by the percentage increase in the 
consumer price index for all urban con-
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sumers (United States city average) over 
2019, 2020, and 2021; 
‘‘(ii) for an item or service furnished 
during 2023 or a subsequent year through 
2026, the median contracted rate for the 
previous year, increased by the percentage 
increase in the consumer price index for all 
urban consumers (United States city aver-
age) over such previous year; 
‘‘(iii) for an item or service furnished 
during a rebasing year (as defined in sub-
paragraph (D)), the median of the con-
tracted rates recognized by the sponsor or 
issuer of such plan (determined with re-
spect to all such plans of such sponsor or 
such issuer that are within the same line 
of business (as specified in subparagraph 
(C)) as the plan involved) as the total max-
imum payment under such plans in such 
year for the same or a similar item or serv-
ice that is provided by a provider or facility 
in the same or similar specialty and pro-
vided in the geographic region (as estab-
lished pursuant to clause (i)) in which the 
item or service is furnished, consistent with 
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the methodology established by the Sec-
retary under subsection (b)(2)(B); and 
‘‘(iv) for an item or service furnished 
during any of the 4 years following a re-
basing year, the median contracted rate for 
the previous year, increased by the per-
centage increase in the consumer price 
index for all urban consumers (United 
States city average) over such previous 
year. 
‘‘(B) USE OF SUBSTITUTE RATE IN CASE 
OF INSUFFICIENT DATA.— 
‘‘(i) IN
GENERAL.—In the case the 
sponsor or issuer of a health plan has in-
sufficient information (as specified by the 
Secretary) to calculate the median of the 
contracted rates in accordance with sub-
paragraph (A) for a year for an item or 
service furnished in a particular geographic 
region (as established pursuant to subpara-
graph (A)(i)) by a type of provider or facil-
ity, the substitute rate (as defined in 
clause (ii)) for such item or service shall be 
deemed to be the median contracted rate 
for such item or service furnished in such 
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region during such year by such a provider 
or facility for such year under such sub-
paragraph (A) for such plan. 
‘‘(ii) SUBSTITUTE
RATE.—For pur-
poses of clause (i), the term ‘substitute 
rate’ means, with respect to an item or 
service furnished by a provider or facility 
in a geographic region (established pursu-
ant to subparagraph (A)(i)) during a year 
for which a health plan is required to make 
payment pursuant to subsection (b)(1), 
(e)(1), or (i)(1)— 
‘‘(I) if sufficient information (as 
specified by the Secretary) exists to 
determine the median of the con-
tracted rates recognized by all health 
plans offered in the same line of busi-
ness (as specified in subparagraph 
(C)) by any group health plan or 
health insurance issuer for such an 
item or service furnished in such re-
gion by such a provider or facility 
during such year using a database or 
other source of information deter-
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mined appropriate by the Secretary, 
such median; and 
‘‘(II) if such sufficient informa-
tion does not exist, the median of the 
contracted rates recognized by all 
health plans offered in the same line 
of business (as specified in subpara-
graph (C)) by any group health plan 
or health insurance issuer for such an 
item or service furnished in a simi-
larly situated geographic region (as 
determined by the Secretary) with 
such sufficient information by such a 
provider or facility during such year 
using such a database or such other 
source of information. 
The Secretary shall develop a methodology 
for determining a substitute rate based on 
a similarly situated health plan that is not 
a Federal health care program (as defined 
in section 1128B(f) of the Social Security 
Act) in the case a substitute rate is not 
calculable under the previous sentence with 
respect to an item or service. 
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‘‘(C) LINE OF BUSINESS.—A line of busi-
ness specified in this subparagraph is one of the 
following: 
‘‘(i) The individual market. 
‘‘(ii) The small group market. 
‘‘(iii) The large group market. 
‘‘(iv) In the case of a self-insured 
group health plan, other self-insured group 
health plans. 
‘‘(D) REBASING YEAR DEFINED.—For pur-
poses of subparagraph (A), the term ‘rebasing 
year’ means 2027 and every 5 years thereafter. 
‘‘(9) NONPARTICIPATING
FACILITY; PARTICI-
PATING FACILITY.— 
‘‘(A) NONPARTICIPATING
FACILITY.—The 
term ‘nonparticipating facility’ means, with re-
spect to an item or service and a health plan, 
a health care facility described in subparagraph 
(B)(ii) that does not have a contractual rela-
tionship with the plan for furnishing such item 
or service. 
‘‘(B) PARTICIPATING FACILITY.— 
‘‘(i) IN GENERAL.—The term ‘partici-
pating facility’ means, with respect to an 
item or service and a health plan, a health 
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care facility described in clause (ii) that 
has a contractual relationship with the 
plan for furnishing such item or service. 
‘‘(ii) HEALTH
CARE
FACILITY
DE-
SCRIBED.—A health care facility described 
in this clause is each of the following: 
‘‘(I) A hospital (as defined in 
1861(e) of the Social Security Act), 
including an emergency department of 
a hospital. 
‘‘(II) A critical access hospital 
(as defined in section 1861(mm)(1) of 
such Act). 
‘‘(III) An ambulatory surgical 
center 
(as 
described 
in 
section 
1833(i)(1)(A) of such Act). 
‘‘(IV) A laboratory. 
‘‘(V) A radiology facility or imag-
ing center. 
‘‘(VI) 
An 
independent 
free-
standing emergency department. 
‘‘(VII) Any other facility speci-
fied by the Secretary. 
‘‘(10) NONPARTICIPATING PROVIDERS; PARTICI-
PATING PROVIDERS.— 
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‘‘(A) NONPARTICIPATING PROVIDER.—The 
term ‘nonparticipating provider’ means, with re-
spect to an item or service and a health plan, 
a physician or other health care provider who 
does not have a contractual relationship with 
the plan for furnishing such item or service 
under the plan. 
‘‘(B) 
PARTICIPATING
PROVIDER.—The 
term ‘participating provider’ means, with re-
spect to an item or service and a health plan, 
a physician or other health care provider who 
has a contractual relationship with the plan for 
furnishing such item or service under the plan. 
‘‘(11) OUT-OF-NETWORK
RATE.—The term 
‘out-of-network rate’ means, with respect to an item 
or service furnished in a State during a year to a 
participant, beneficiary, or enrollee of a health plan 
receiving such item or service from a nonpartici-
pating provider or facility— 
‘‘(A) subject to subparagraphs (C) and 
(D), in the case such State has in effect a State 
law that provides for a method for determining 
the total amount payable under such health 
plan regulated by such State with respect to 
such item or service furnished by such provider 
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or facility, such amount determined in accord-
ance with such law; 
‘‘(B) subject to subparagraphs (C) and 
(D), in the case such State does not have in ef-
fect such a law with respect to such item or 
service, plan, and provider or facility— 
‘‘(i) subject to clause (ii), if the pro-
vider or facility (as applicable) and such 
plan agree on an amount of payment (in-
cluding if agreed on through open negotia-
tions under subsection (j)(1)) with respect 
to such item or service, such agreed on 
amount; or 
‘‘(ii) if such provider or facility (as 
applicable) and such plan enter the medi-
ated dispute process under subsection (j) 
and do not so agree before the date on 
which a selected independent entity (as de-
fined in paragraph (3) of such subsection) 
makes a determination with respect to 
such item or service under such subsection, 
the amount of such determination; 
‘‘(C) in the case such State has an All- 
Payer Model Agreement under section 1115A of 
the Social Security Act, the amount that the 
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State approves under such system for such item 
or service so furnished; or 
‘‘(D) in the case such health plan is a self- 
insured group health plan and in the case of a 
State with an agreement with such plan in ef-
fect as of the date of the enactment of the Con-
sumer Protections Against Surprise Medical 
Bills Act of 2020, that provides for a method 
for determining the total amount payable under 
such health plan with respect to such item or 
service furnished by such provider or facility, 
such amount determined in accordance with 
such method. 
‘‘(12) RECOGNIZED AMOUNT.—The term ‘recog-
nized amount’ means, with respect to an item or 
service furnished in a State during a year to a par-
ticipant, beneficiary, or enrollee of a health plan by 
a nonparticipating provider or nonparticipating facil-
ity— 
‘‘(A) subject to subparagraphs (C) and 
(D), in the case such State has in effect a law 
described in paragraph (11)(A) with respect to 
such item or service, provider or facility, and 
plan, the amount determined in accordance with 
such law; 
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‘‘(B) subject to subparagraphs (C) and 
(D), in the case such State does not have in ef-
fect such a law, an amount that is the median 
contracted rate for such item or service for such 
year; 
‘‘(C) subject to subparagraph (D), in the 
case such State is described in paragraph 
(11)(C) with respect to such item or service so 
furnished, the amount that the State approves 
under such system for such item or service so 
furnished; or 
‘‘(D) in the case such health plan is a self- 
insured group health plan and in the case of a 
State with an agreement with such plan in ef-
fect as of the date of the enactment of the Con-
sumer Protections Against Surprise Medical 
Bills Act of 2020, that provides for a method 
for determining the total amount payable under 
such health plan with respect to such item or 
service furnished by such provider or facility, 
such amount determined in accordance with 
such method. 
‘‘(13) STABILIZE.—The term ‘to stabilize’, with 
respect to an emergency medical condition, has the 
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meaning give in section 1867(e)(3)(A) of the Social 
Security Act). 
‘‘(14) COST-SHARING.—The term ‘cost-sharing’ 
includes copayments, coinsurance, and deductibles. 
‘‘(l) PAYMENT TO PROVIDER OR FACILITY.—In the 
case of any payment required to be made by a health plan 
pursuant to subsection (b)(1), (e)(1), or (i)(1) to a 
nonparticiapting provider or nonparticipating facility for 
an item or service, such payment shall be made to such 
provider or facility and not to the individual receiving such 
item or service.’’. 
(2) EFFECTIVE DATE.—The amendments made 
by paragraph (1) shall apply with respect to plan 
years beginning on or after January 1, 2022. 
(b) IRC AMENDMENTS.— 
(1) IN
GENERAL.—Subchapter B of chapter 
100 of the Internal Revenue Code of 1986 is amend-
ed by adding at the end the following new section: 
‘‘SEC. 9816. PATIENT PROTECTIONS. 
‘‘(a) CHOICE OF HEALTH CARE PROFESSIONAL.—If 
a health plan requires or provides for designation by a par-
ticipant or beneficiary of a participating primary care pro-
vider, then the plan shall permit each participant or bene-
ficiary to designate any participating primary care pro-
vider who is available to accept such individual. 
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‘‘(b) COST-SHARING AND PAYMENT OF EMERGENCY 
SERVICES.— 
‘‘(1) IN GENERAL.—If a health plan provides or 
covers any benefits with respect to services in an 
emergency department of a hospital and, for plan 
year 2022 or a subsequent plan year, with respect 
to emergency services in an independent free-
standing emergency department, the plan shall cover 
emergency services— 
‘‘(A) without the need for any prior au-
thorization determination; 
‘‘(B) whether the health care provider fur-
nishing such services is a participating provider 
or a participating facility that is an emergency 
department of a hospital or an independent 
freestanding emergency department (in this 
subsection referred to as a ‘participating emer-
gency facility’) with respect to such services; 
‘‘(C) in a manner so that, if such services 
are provided to a participant or beneficiary by 
a nonparticipating provider or a nonpartici-
pating facility that is an emergency department 
of a hospital or an independent freestanding 
emergency department— 
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‘‘(i) such services will be provided 
without imposing any requirement under 
the plan for prior authorization of services 
or any limitation on coverage that is more 
restrictive than the requirements or limita-
tions that apply to emergency services re-
ceived from participating providers and 
participating emergency facilities with re-
spect to such plan; 
‘‘(ii) the cost-sharing requirement is 
not greater than the requirement that 
would apply if such services were furnished 
by a participating provider or a partici-
pating emergency facility, as applicable; 
‘‘(iii) such cost-sharing requirement is 
calculated as if the contracted rate for 
such services if furnished by a partici-
pating provider or a participating emer-
gency facility were equal to the recognized 
amount for such services; 
‘‘(iv) the health plan pays to such pro-
vider or facility, respectively, the amount 
by which the out-of-network rate for such 
services exceeds the cost-sharing amount 
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for such services (as determined in accord-
ance with clauses (ii) and (iii)); and 
‘‘(v) any deductible or out-of-pocket 
maximum that would apply if such services 
were furnished by a participating provider 
or a participating emergency facility shall 
be the deductible or out-of-pocket max-
imum that applies; and 
‘‘(D) without regard to any other term or 
condition of such coverage (other than exclusion 
or coordination of benefits, or an affiliation or 
waiting period, permitted under section 2704 of 
the Public Health Service Act, including as in-
corporated pursuant to section 715 of the Em-
ployee Retirement Income Security Act of 1974 
and section 9815, and other than applicable 
cost-sharing). 
‘‘(2) AUDIT PROCESS AND RULEMAKING PROC-
ESS FOR MEDIAN CONTRACTED RATES.— 
‘‘(A) AUDIT PROCESS.— 
‘‘(i) IN
GENERAL.—Not later than 
July 1, 2021, the Secretary, in coordina-
tion with the Secretary of Health and 
Human Services and the Secretary of 
Labor and in consultation with the Na-
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tional Association of Insurance Commis-
sioners, shall establish through rulemaking 
a process, in accordance with clause (ii), 
under which health plans are audited by 
the Secretary to ensure that— 
‘‘(I) such plans are in compliance 
with the requirement of applying a 
median contracted rate under this sec-
tion; and 
‘‘(II) that such median con-
tracted rate so applied satisfies the 
definition under subsection (k)(8) 
with respect to the year involved. 
‘‘(ii) AUDIT
SAMPLES.—Under the 
process established pursuant to clause (i), 
the Secretary— 
‘‘(I) shall conduct audits de-
scribed in such clause of a sample of 
health plans; and 
‘‘(II) may audit any health plan 
if the Secretary has received any com-
plaint about such plan that involves 
the compliance of the plan with the 
requirement described in such clause. 
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‘‘(B) RULEMAKING.—Not later than July 
1, 2021, the Secretary, in coordination with the 
Secretary of Labor and the Secretary of Health 
and Human Services, shall establish through 
rulemaking— 
‘‘(i) the methodology the sponsor of a 
health plan shall use to determine the me-
dian contracted rate, which shall account 
for relevant payment adjustments that 
take into account facility type that are oth-
erwise taken into account for purposes of 
determining payment amounts with respect 
to participating facilities; and 
‘‘(ii) the information such sponsor 
shall share with the nonparticipating pro-
vider involved when making such a deter-
mination. 
‘‘(c) ACCESS TO PEDIATRIC CARE.— 
‘‘(1) PEDIATRIC CARE.—In the case of a person 
who has a child who is a participant or beneficiary 
under a health plan, if the plan requires or provides 
for the designation of a participating primary care 
provider for the child, the plan shall permit such 
person to designate a physician (allopathic or osteo-
pathic) who specializes in pediatrics as the child’s 
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primary care provider if such provider participates 
in the network of the plan. 
‘‘(2) CONSTRUCTION.—Nothing in paragraph 
(1) shall be construed to waive any exclusions of cov-
erage under the terms and conditions of the plan 
with respect to coverage of pediatric care. 
‘‘(d) PATIENT ACCESS TO OBSTETRICAL AND GYNE-
COLOGICAL CARE.— 
‘‘(1) GENERAL RIGHTS.— 
‘‘(A) DIRECT ACCESS.—A health plan de-
scribed in paragraph (2) may not require au-
thorization or referral by the plan or any per-
son (including a primary care provider de-
scribed in paragraph (2)(B)) in the case of a fe-
male participant or beneficiary who seeks cov-
erage for obstetrical or gynecological care pro-
vided by a participating health care professional 
who specializes in obstetrics or gynecology. 
Such professional shall agree to otherwise ad-
here to such plan’s policies and procedures, in-
cluding procedures regarding referrals and ob-
taining prior authorization and providing serv-
ices pursuant to a treatment plan (if any) ap-
proved by the plan. 
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