I 
115TH CONGRESS 
1ST SESSION H. R. 3877 
To amend title XVIII of the Social Security Act to protect health care 
consumers from surprise billing practices, and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
SEPTEMBER 28, 2017 
Ms. MICHELLE LUJAN GRISHAM of New Mexico introduced the following bill; 
which was referred to the Committee on Energy and Commerce, and in 
addition to the Committee on Ways and Means, for a period to be subse-
quently determined 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 XVIII of the Social Security Act to protect 
health care consumers from surprise billing practices, 
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. 
This Act may be cited as the ‘‘Fair Billing Act of 
2017’’. 
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SEC. 2. PROTECTING HEALTH CARE CONSUMERS FROM 
SURPRISE BILLING PRACTICES. 
(a) PROVIDERS.—Section 1866 of the Social Security 
Act (42 U.S.C. 1395cc) is amended— 
(1) in subsection (a)(1)— 
(A) in subparagraph (X), by striking 
‘‘and’’ at the end; 
(B) in subparagraph (Y), by striking the 
period at the end and inserting ‘‘, and’’; and 
(C) by inserting after subparagraph (Y) 
the following new subparagraph: 
‘‘(Z) in the case of a hospital or critical access 
hospital, to meet the requirements of paragraphs 
(1), (2), and (3) of subsection (l).’’; and 
(2) by adding at the end the following new sub-
section: 
‘‘(l) NO SURPRISE BILLING AT IN-NETWORK FACILI-
TIES; EMERGENCY SERVICES; EXTERNAL REVIEW
OF 
CERTAIN PAYMENTS.— 
‘‘(1) NO
SURPRISE
BILLING
AT
IN-NETWORK 
FACILITIES.— 
‘‘(A) IN
GENERAL.—Subject to subpara-
graph (B), in the case of an individual with 
benefits under a health care plan who is fur-
nished items or services at a relevant facility 
(including items or services furnished by a pro-
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vider of services or supplier at such facility) 
that is within the health care provider network 
or otherwise a participating provider of services 
or supplier with respect to the health care plan 
of such individual, the relevant facility (or the 
provider of services or supplier) may not hold 
the individual liable for more than the amount 
that the individual would have been required to 
pay in cost sharing if such items or services had 
been furnished by a relevant facility (or, as ap-
plicable, by a provider of services or supplier) 
that is within the health care provider network 
or otherwise a participating provider of services 
or supplier with respect to the health care plan 
of such individual. 
‘‘(B) EXCEPTION FOR NOTIFICATION AND 
WRITTEN
CONSENT.—Subparagraph (A) shall 
not apply in the case of a relevant facility (or 
provider of services or supplier at such facility) 
that, not later than 72 hours before furnishing 
items or services to an individual (or, in the 
case where such items or services are scheduled 
to be furnished less than 72 hours from the 
time of scheduling, 24 hours before furnishing 
such items or services), notifies such individual 
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of an estimate of the individual’s anticipated 
total out-of-pocket cost of care for such items 
and services and obtains written consent from 
such individual. 
‘‘(2) EMERGENCY SERVICES.—In the case of an 
individual with benefits under a health care plan 
who is furnished items or services with respect to an 
emergency medical condition at a hospital or critical 
access hospital (including items or services furnished 
by a provider of services or a supplier at the hospital 
or critical access hospital), the hospital or critical ac-
cess hospital (or the provider of services or supplier) 
may not charge the individual more than the amount 
that the individual would have been required to pay 
in cost sharing if such items or services had been 
furnished by a hospital or critical access hospital (or 
by a provider of services or supplier) within such 
network or otherwise a participating provider of 
services. 
‘‘(3) REVIEW
PROCESS.—A relevant facility 
shall participate in any review process requested, 
and comply with any determination made, under sec-
tion 3 of the Fair Billing Act of 2017. 
‘‘(4) DEFINITIONS.—In this subsection: 
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‘‘(A) EMERGENCY MEDICAL CONDITION.— 
The term ‘emergency medical condition’ has the 
meaning given such term in section 1867(e). 
‘‘(B) HEALTH
CARE
PLAN.—The term 
‘health care plan’ means— 
‘‘(i) a group health plan; 
‘‘(ii) group health insurance coverage; 
‘‘(iii) individual health insurance cov-
erage; or 
‘‘(iv) a Federal health care program 
(as defined in section 1128B(f)). 
‘‘(C) 
PUBLIC
HEALTH
SERVICE
ACT 
TERMS.—The terms ‘group health plan’, ‘group 
health insurance coverage’, and ‘individual 
health insurance coverage’ have the meanings 
given those terms, respectively, under section 
2791 of the Public Health Service Act (42 
U.S.C. 300gg–91). 
‘‘(D) RELEVANT FACILITY.—The term ‘rel-
evant facility’ means a hospital or critical ac-
cess hospital.’’. 
(b) INSURERS.—Section 2719A of the Public Health 
Service Act (42 U.S.C. 300gg–19a) is amended by adding 
at the end the following new subsection: 
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‘‘(e) PAYMENT REVIEW PROCESS.—A group health 
plan or a health insurance issuer offering group or indi-
vidual health insurance shall participate in any review 
process requested, and comply with any determination 
made, under section 3 of the Fair Billing Act of 2017.’’. 
(c) EFFECTIVE DATE.—The amendments made by 
this section shall apply with respect to items or services 
furnished on or after the date that is one year after the 
date of the enactment of this Act. 
SEC. 3. REVIEW PROCESS FOR SURPRISE BILLING PRAC-
TICES. 
(a) STATE ELECTION.—Each State may elect, at 
such time and in such manner as the Secretary of Health 
and Human Services (the ‘‘Secretary’’) shall prescribe, to 
establish a review process described in subsection (c) to 
be available at the request of a health care plan or pro-
vider of services or supplier. 
(b) FAILURE TO ESTABLISH AN EXTERNAL REVIEW 
PROCESS OR IMPLEMENT STANDARDS.—In the case of a 
State that does not elect under subsection (a) to establish 
a review process described in subsection (c), the Secretary 
shall make available within the State such a review process 
to be available at the request of a health care plan or pro-
vider of services or supplier. 
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(c) REVIEW PROCESS.—In the case of payment from 
a health care plan to a provider of services or supplier 
for items or services furnished by such provider or supplier 
to an individual with benefits under such plan in a case 
in which section 1866(l)(1)(A) or subsection (l)(2) of such 
section applies and such plan or such provider or supplier 
requests a review of such payment, a review process de-
scribed in this subsection is a process by which an inde-
pendent health care expert determines the amount of the 
payment to be made by such plan to such provider or sup-
plier using the methodology described in subsection (d) 
and notifies the individual furnished such items or services 
of such determination within 30 days of making such de-
termination. 
(d) METHODOLOGY.—In the case of payment from a 
health care plan to a provider of services or supplier for 
items or services furnished by such provider or supplier 
to an individual with benefits under such plan, the meth-
odology described in this subsection consists of an inde-
pendent health care expert determining an amount to be 
paid by the plan to the provider or supplier by selecting 
one of the following amounts: 
(1) The lesser of— 
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(A) an amount proposed by the provider of 
services or supplier that furnished such items or 
services; and 
(B) an amount that is equal to the 80th 
percentile of the amount paid for such items 
and services, as reported by a national all-payer 
claims database or, if available, a State or re-
gional all-payer claims database, as determined 
by the independent health care expert. 
(2) The greater of— 
(A) an amount proposed by the health plan 
providing health benefits coverage to such indi-
vidual with respect to such items and services; 
and 
(B) 1.25 multiplied by the Medicare fee 
schedule for such items and services (or, if such 
items and services are not covered under Medi-
care, an amount determined by the Secretary). 
(e) RECONSIDERATION.—An individual furnished 
items or services by a provider of services or supplier for 
which payment is determined in accordance with the re-
view process described in subsection (c) may, within 30 
days of receiving notification of such determination, file 
a written request for a reconsideration of such determina-
tion with the independent health care expert making such 
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determination. Such expert shall, within 30 days of receiv-
ing such request, determine whether such determination 
should be revised and notify such individual of any change 
to such determination. 
(f) COST-SHARING CLARIFICATION.—Any cost shar-
ing (including any copayment or coinsurance) that an indi-
vidual may be responsible for after a determination is 
made under subsection (c) shall count towards such indi-
vidual’s annual deductible with respect to the health care 
plan of such individual. 
(g) DEFINITIONS.—In this section: 
(1) HEALTH CARE PLAN.—The term ‘‘health 
care plan’’ has the meaning given such term in sec-
tion 1866(l)(4) of the Social Security Act (42 U.S.C. 
1395cc(l)(4)). 
(2) INDEPENDENT HEALTH CARE EXPERT DE-
FINED.—The term ‘‘independent health care expert’’ 
means an individual who is, with respect to a pay-
ment for items and services— 
(A) an expert in health care billing; 
(B) free of conflicts of interest with respect 
to such payment; and 
(C) appointed by a State or the Secretary 
to make determinations under the external re-
view process described in subsection (c). 
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