I 115th CONGRESS 1st Session H. R. 3877 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 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 amend title XVIII of the Social Security Act to protect health care consumers from surprise billing practices, and for other purposes.

1. Short title This Act may be cited as the Fair Billing Act of 2017 . 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 subsection: (l) No surprise billing at in-Network facilities; emergency services; external review of certain payments (1) No surprise billing at in-network facilities (A) In general Subject to subparagraph (B), in the case of an individual with benefits under a health care plan who is furnished items or services at a relevant facility (including items or services furnished by a provider 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 applicable, 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 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 access 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 section 3 of the Fair Billing Act of 2017. (4) Definitions In this subsection: (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 coverage; 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 relevant facility means a hospital or critical access 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: (e) Payment review process A group health plan or a health insurance issuer offering group or individual 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. 3. Review process for surprise billing practices (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 provider 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 provider of services or supplier. (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 described in this subsection is a process by which an independent health care expert determines the amount of the payment to be made by such plan to such provider or supplier 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 determination. (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 methodology described in this subsection consists of an independent 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— (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 regional 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 individual 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 Medicare, 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 review process described in subsection (c) may, within 30 days of receiving notification of such determination, file a written request for a reconsideration of such determination with the independent health care expert making such determination. Such expert shall, within 30 days of receiving 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 sharing (including any copayment or coinsurance) that an individual may be responsible for after a determination is made under subsection (c) shall count towards such individual’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 section 1866(l)(4) of the Social Security Act ( 42 U.S.C. 1395cc(l)(4) ). (2) Independent health care expert defined The term independent health care expert means an individual who is, with respect to a payment 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 review process described in subsection (c). (3) Provider of services The term provider of services has the meaning given such term in section 1861 of the Social Security Act ( 42 U.S.C. 1395x ). (4) State The term State has the meaning given such term in section 210 of the Social Security Act ( 42 U.S.C. 410 ). (5) Supplier The term supplier has the meaning given such term in section 1861 of the Social Security Act ( 42 U.S.C. 1395x ). (h) Grants to States (1) In general The Secretary of Health and Human Services shall provide grants, not later than 90 days after the date of the enactment of this Act, to eligible States to establish and implement a review process described in subsection (a). (2) Eligible State For purposes of this subsection, the term eligible State means a State that has elected under subsection (a) to establish a review process and that has submitted an application to the Secretary at such time, in such manner, and containing such information as the Secretary may require. (3) Authorization of appropriations There is authorized to be appropriated to the Secretary of Health and Human Services $4,000,000,000 to award grants under this subsection. (i) Effective date 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.