SENATE Substitute For
HOUSE BILL NO. 4459
A bill to amend 1978 PA 368, entitled
"Public health code,"
(MCL 333.1101 to 333.25211) by adding article 18.
The people of the state of michigan enact:
ARTICLE 18. SURPRISE MEDICAL BILLING
Sec. 24501. (1) For purposes of this article, the words and phrases defined in sections 24502 to 24504 have the meanings ascribed to them in those sections.
(2) In addition, article 1 contains general definitions and principles of construction applicable to all articles in this code.
Sec. 24502. (1) "Carrier" means any of the following:
(a) A person that issues a health benefit plan in this
state, including an insurer, health maintenance organization, or any other
person providing a plan of health benefits, coverage, or insurance subject to state
insurance regulation.
(b) An entity that contracts with this state or a local
unit of government to provide, deliver, arrange for, pay for, or reimburse any
of the costs of health care services provided under a self-funded plan
established or maintained by the state or local unit of government for its
employees.
(2) "Department" means the department of
insurance and financial services.
(3) "Director" means the director of the
department or his or her designee.
(4) "Emergency patient" means an individual with a physical or mental condition that manifests itself by acute symptoms of sufficient severity, including, but not limited to, pain such that a prudent layperson, possessing average knowledge of health and medicine, could reasonably expect to result in 1 or more of the following:
(a) Placing the health of the individual or, in the case of a pregnant woman, the health of the woman or the unborn child, or both, in serious jeopardy.
(b) Serious impairment of bodily function.
(c) Serious dysfunction of a body organ or part.
(5) "Health benefit plan" means an individual or group expense-incurred hospital, medical, or surgical policy or certificate, an individual or group health maintenance organization contract, or a self-funded plan established or maintained by this state or a local unit of government for its employees. Health benefit plan does not include accident-only, credit, dental, or disability income insurance; long-term care insurance; coverage issued as a supplement to liability insurance; coverage only for a specified disease or illness; worker's compensation or similar insurance; or automobile medical-payment insurance.
(6) "Health care service" means a diagnostic procedure, medical or surgical procedure, examination, or other treatment.
(7) "Health facility" means any of the following:
(a) A hospital.
(b) A freestanding surgical outpatient facility as that term is defined in section 20104.
(c) A skilled nursing facility as that term is defined in section 20109.
(d) A physician's office or other outpatient setting, that is not otherwise described in this subsection.
(e) A laboratory.
(f) A radiology or imaging center.
(8) "Health maintenance organization" means that term as defined in section 3501 of the insurance code of 1956, 1956 PA 218, MCL 500.3501.
(9) "Hospital" means that term as defined in
section 20106.
(10) "Insurer" means that term as defined in
section 106 of the insurance code of 1956, 1956 PA 218, MCL 500.106.
Sec. 24503. (1) "Local unit of government" means that
term as defined in section 1 of 2006 PA 495, MCL 550.1951.
(2) "Nonemergency patient" means an individual whose physical or mental condition is such that the individual may reasonably be suspected of not being in imminent danger of loss of life or of significant health impairment.
(3) "Nonparticipating health facility" means a health facility that is not a participating health facility.
(4) "Nonparticipating provider" means a provider who is not a participating provider.
Sec. 24504. (1) "Participating health facility" means a health facility that, under contract with a carrier, or with the carrier's contractor or subcontractor, agrees to provide health care services to individuals who are covered by health benefit plans issued or administered by the carrier and to accept payment by the carrier, contractor, or subcontractor for the services covered by the health benefit plans as payment in full, other than coinsurance, copayments, or deductibles.
(2) "Participating provider" means a provider who, under contract with a carrier, or with the carrier's contractor or subcontractor, agrees to provide health care services to individuals who are covered by health benefit plans issued or administered by the carrier and to accept payment by the carrier, contractor, or subcontractor for the services covered by the health benefit plans as payment in full, other than coinsurance, copayments, or deductibles.
(3) "Patient's representative" means any of the following:
(a) A person to whom a nonemergency patient has given express written consent to represent the patient.
(b) A person authorized by law to provide consent for a nonemergency patient.
(c) A provider who is treating a nonemergency patient, but only if the patient is unable to provide consent.
(4) "Provider" means an individual who is
licensed, registered, or otherwise authorized to engage in a health profession
under article 15, but does not include a dentist licensed under part 166.
Sec. 24507. (1) Subsection (2) applies to a nonparticipating provider who is providing a health care service if any of the following apply:
(a) The health care service is provided to an emergency patient, is covered by the emergency patient's health benefit plan, and is provided to the emergency patient by the nonparticipating provider at a participating health facility or nonparticipating health facility.
(b) All of the following apply:
(i) The health care
service is provided to a nonemergency patient.
(ii) The health care
service is covered by the nonemergency patient's health benefit plan.
(iii) The health care
service is provided to the nonemergency patient by the nonparticipating
provider at a participating health facility.
(iv) Either of the
following:
(A) The nonemergency patient does not have the ability
or opportunity to choose a participating provider.
(B) The nonemergency patient has not been provided the disclosure required under section 24509.
(c) The health care service is provided by the nonparticipating provider at a hospital that is a participating health facility to an emergency patient who was admitted to the hospital within 72 hours after receiving a health care service in the hospital's emergency room.
(a) Subject to section 24510, the median amount negotiated by the patient's carrier for the region and provider specialty, excluding any in-network coinsurance, copayments, or deductibles. The patient's carrier shall determine the region and provider specialty for purposes of this subdivision.
(b) One hundred and fifty percent of the Medicare fee for service fee schedule for the health care service provided, excluding any in-network coinsurance, copayments, or deductibles.
(3) If the
circumstance described in subsection (1)(c) applies, this section applies to
any health care service provided by a nonparticipating provider to the
emergency patient during his or her hospital stay.
Sec. 24510. (1) Beginning July 1, 2021, if a
nonparticipating provider believes that the amount described in section
24507(2)(a) or 24509(5)(a) was incorrectly calculated, the nonparticipating
provider may make a request to the department for a review of the calculation.
The request must be made on a form and in a manner required by the department.
(2) The department may request data on
the median amount negotiated by the patient's carrier with participating
providers or any documents, materials, or other information that the department
believes is necessary to assist the department in reviewing the calculation
described in subsection (1) and may consult an external database that contains
the negotiated rates under the patient's health benefit plan for the applicable
health care service. For purposes of conducting a review under this section, any
data, documents, materials, or other information requested by the department must
only be submitted to the department.
(3) If, after conducting its review
under this section, the department determines that the amount described in
section 24507(2)(a) or 24509(5)(a) was incorrectly calculated, the department
shall determine the correct amount. A nonparticipating provider shall not file
a subsequent request for a review under subsection (1) if the request involves the
same rate calculation for a health care service for which the nonparticipating
provider has previously received a determination from the department under this
section.
(4) All of the following apply to any
data, documents, materials, or other information described in subsection (2)
that are in the possession or control of the department and that are obtained
by, created by, or disclosed to the director or a department employee for
purposes of this section:
(a) The data, documents, materials, or
other information is considered proprietary and to contain trade secrets.
(b) The data, documents, materials, or
other information are confidential and privileged and are not subject to
disclosure under the freedom of information act, 1976 PA 442, MCL 15.231 to
15.246.
(c) The data, documents, materials, or
other information are not subject to subpoena and are not subject to discovery
or admissible in evidence in any private civil action.
(5) The director or a department
employee who receives data, documents, materials, or other information under
this section shall not testify in any private civil action concerning the data,
documents, materials, or information.
Sec. 24511. (1) A nonparticipating provider who
provides a health care service involving a complicating factor to an emergency
patient described in section 24507(1)(a) or (c) may file a claim with a carrier
for a reimbursement amount that is greater than the amount described in section
24507(2). The claim must be accompanied by both of the following:
(a) Clinical documentation
demonstrating the complicating factor.
(b) The emergency patient's medical
record for the health care service, with the portions of the record supporting
the complicating factor highlighted.
(2) A carrier shall do 1 of the
following within 30 days after receiving the claim described in subsection (1):
(a) If the carrier determines that the
documentation submitted with the claim demonstrates a complicating factor, make
1 additional payment that is 25% of the amount provided under section
24507(2)(a).
(b) If the carrier determines that the
documentation submitted with the claim does not demonstrate a complicating
factor, issue a letter to the nonparticipating provider denying the claim.
(3) If a carrier denies a claim under
subsection (2), beginning July 1, 2021, the nonparticipating provider may file
a written request for binding arbitration with the department on a form and in
a manner required by the department. The department shall accept the request
for binding arbitration if the department receives all of the following from
the nonparticipating provider:
(a) The documentation that the
nonparticipating provider submitted to the carrier under subsection (1).
(b) The contact information for the
emergency patient's health benefit plan.
(c) The denial letter described in
subsection (2).
(4) If the request for binding
arbitration under subsection (3) is accepted by the department, the department
shall notify the carrier. Within 30 days after receiving the department's
notification under this subsection, the carrier shall submit written
documentation to the department either confirming the carrier's denial or
providing an alternative payment offer to be considered in the arbitration
process.
(5) The department shall create and
maintain a list of arbitrators approved by the department who are trained by
the American Arbitration Association or American Health Lawyers Association for
purposes of providing binding arbitration under this section. The parties to
the arbitration shall agree on an arbitrator from the department's list. The
arbitration must include a review of written submissions by both parties,
including alternative payment offers, and the arbitrator shall provide a
written decision within 45 days after receiving the documentation submitted by
the parties. In making a determination, the arbitrator shall consider
documentation supporting the use of a procedure code or modifier for care
provided beyond the usual health care service and any of the following:
(a) Increased intensity, time, or
technical difficulty of the health care service.
(b) The severity of the patient's
condition.
(c) The physical or mental effort
required in providing the health care service.
(6) The nonparticipating provider and
the carrier shall each pay 1/2 of the total costs of the arbitration
proceeding. A nonparticipating provider participating in arbitration under this
section shall not collect or attempt to collect from the patient any amount
other than the applicable in-network coinsurance, copayment, or deductible.
(7) This section does not limit any
other review process provided under this article.
(8) As used in this section,
"complicating factor" means a factor that is not normally incident to
a health care service, including, but not limited to, the following:
(a) Increased intensity, time, or
technical difficulty of the health care service.
(b) The severity of the patient's
condition.
(c) The physical or mental effort
required in providing the health care service.
Sec. 24513. This article does not prohibit a nonparticipating provider and a carrier from agreeing, through private negotiations or an internal dispute resolution process, to a payment amount that is greater than the amounts described in section 24507(2) or 24509(5). A nonparticipating provider entering into an agreement authorized under this section shall not collect or attempt to collect from the patient any amount other than the applicable in-network coinsurance, copayment, or deductible.
Sec. 24515. (1) Subject to subsection (3), the department shall prepare an annual report that, except as otherwise provided in subsection (2), includes, but is not limited to, the following information for the immediately preceding calendar year:
(a) The number of out-of-network billing complaints received by the department from enrollees or their authorized representatives.
(b) The number of complaints received by the department from enrollees or their authorized representatives, separated by provider specialty.
(c) For each health plan, the ratio of out-of-network billing complaints to the total number of enrollees in the health plan.
(d) Carrier network adequacy by provider specialty.
(e) The number of requests made to the department under
section 24510(1).
(f) The number of requests for binding arbitration filed under section 24511(3).
(2) The department shall not consider insurance rates when preparing the report required under this section.
(3) By July 1 of the year following the year of the
effective date of the amendatory act that added this article, and by every July
1 thereafter, the department shall prepare the report required under this
section and provide the report to the senate and house of representatives
standing committees on health policy and insurance. The department shall also
post the report on the department's website.
Sec. 24517. The department may promulgate rules to implement sections 24510 and 24511. However, the department or another department of this state shall not promulgate rules to implement any other section in this article.
Enacting section 1. This amendatory act does not take effect unless all of the following bills of the 100th Legislature are enacted into law:
(a) House Bill No. 4460.
(b) House Bill No. 4990.
(c) House Bill No. 4991.