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States Act to Increase Medicaid/Marketplace Coverage to Insulate Consumers from COVID-19 Care Costs
During this public health emergency, new federal laws (HR 6201, HR 748) are making significant steps to eliminate consumer cost-sharing for coronavirus (COVID-19) testing, diagnosis, and prevention while states are working to increase insurance access and surprise billing protections.
The recently passed Families First Coronavirus Response Act includes several provisions that expand the ability of Medicaid and the Children’s Health Insurance Program (CHIP) to cover COVID-19 testing and testing-related services with no out-of-pocket cost to consumers. The law also includes an option allowing states to extend Medicaid coverage to uninsured individuals for testing and testing-related services. States’ medical and administrative costs for this will be fully matched by the federal government.
However, high costs associated with medical treatment pose significant challenges for the millions of uninsured and underinsured individuals across the country, and these measures may not protect Americans from costs associated with treatment and management of the virus, including prescription drugs, physicians’ visits, hospitalizations, and specialty care. Consumers need health coverage to ensure there is no barrier to receiving the care they may need.
As the pandemic worsens, state agencies are taking action to maximize access to coverage, including private insurance, as one means to protect consumers from the severe financial burden that may result from necessary medical care. This includes increasing access to qualified health plans (QHPs) sold through the health insurance marketplaces. Under requirements set by the Affordable Care Act (ACA), QHPs must cover essential health benefits, including emergency room services, hospitalizations, prescription drugs, preventive services, and mental health services critical to combatting and managing the outbreak. QHPs also must follow cost-sharing restrictions, including the provision of preventive services at no out-of-pocket cost, and the prohibition on annual and lifetime limits on spending.
State-based marketplaces (SBMs) are working diligently to leverage available flexibilities to ensure that consumers in their states are able to enroll in and maintain QHP coverage. Eleven SBMs have opted to open temporary special enrollment periods (SEPs) so uninsured individuals can apply for coverage. This is in addition to actions taken by all SBMs to promote other SEPs available to consumers, including an SEP trigged by loss of minimum essential coverage (such as employer-sponsored coverage).
SBMs are rapidly tweaking tools, outreach strategies, and operations to ensure optimal customer service while also taking steps to comply with physical distancing guidance issued by state public health officials. DC Health Link, in Washington, DC, has created a table to educate consumers about how COVID-19-related services are covered under their health plans. Nevada Health Link has provided a comprehensive listing of state and federal resources available to consumers. Several SBMs are also coordinating closely with insurers who can leverage payment and grace period deadline extensions to help ensure consumer coverage is not disrupted during the pandemic.
In addition to increasing access to coverage, states are also moving forward to enact protections against the practice of surprise balance bills, or unexpected medical bills usually received because an enrollee unknowingly received out-of-network care. Surprise billing laws foremost seek to protect consumers from paying extreme bills incurred when they receive out-of-network services either unknowingly or because there was no other choice of provider or facility. Surprise billing protections will be even more important to ensure that consumers are protected from unprecedented costs in the event they require COVID-19 treatment.
Health systems are rapidly changing in response to the pandemic – states are setting up make-shift clinics, expanding telehealth services, authorizing more providers to be reimbursed for services, and relaxing provider licensing requirements. Many of these actions are necessary to increase provider capacity to meet the rapidly accelerating need for emergency health care services. However, insurers typically operate by only covering care administered by a limited network of providers. And, in some cases, insurers may include a facility, such as a hospital, in their network, but not actually cover all the providers who work there or services performed at that facility — including specialists or laboratory services. Even in normal circumstances, these situations leave insured individuals vulnerable to surprise medical bills. As states rush to expand health care capacity and consumers have increased urgency to seek care, consumers are increasingly susceptible to receiving care from an out-of-network provider or at an out-of-network facility.
Under the ACA, insurers are required to cover out-of-network emergency services as if delivered in-network. That same protections does not extend outside of an emergency setting, though several states have passed laws to protect consumers from surprise bills, including those incurred when a consumer had no other choice of where to receive treatment.
Recently, on March 18, 2020, Maine took emergency action to enact LD 2105, which incorporated surprise billing protections in the case of emergency services into state law. The law also includes billing protections for uninsured individuals as well as those covered by self-insured plans.
In Virginia, SB 172 has been sent to the governor. Like Maine’s law, the bill incorporates protections in the event of emergency care into state law. The bill also adds new protections in the case of out-of-network surgical or ancillary services provided at an in-network facility.
Without additional federal action, states will continue to take the lead in doing what is best for their citizens, including finding innovative strategies to ensure individuals have the best possible access to available services, while also protecting them from undue financial strain. The National Academy for State Health Policy will continue to monitor and report on the situation as it evolves.
New Federal Rule Increases Administrative Burdens and Cost to Marketplaces
New regulations imposed by the US Department of Health and Human Services (HHS) require a significant change in how insurers bill consumers for health insurance premiums. The technical change:
- Imposes a significant administrative burden on insurers, the health insurance marketplaces, and consumers;
- Raises premium prices; and
- Risks generating confusion among consumers when they pay their monthly premiums.
- Collect no less than $1 per enrollee per month to cover non-Hyde abortion services (if offered);
- Create distinct accounts to collect premium payments and use them to reimburse enrollees’ claims for non-Hyde abortion services; and
- Alert enrollees that the insurer is separately charging for these services by adding a distinct line item on the enrollee’s monthly bill; sending the enrollee a separate bill for non-Hyde services; and/or by sending the enrollee a notice, shortly after the time of enrollment, that their monthly bill will include a separate charge for these services.
Billing and Premium Payments Changes
This new regulation alters the current enrollee billing and notification requirement, mandating that insurers send an entirely separate bill to enrollees for premium charges associated with non-Hyde abortion services. The invoice for the separate premium that would be used to fund non-Hyde abortion services can be included in the same envelope as the health plan’s monthly premium bill. However, the non-Hyde charges must be listed on a distinct piece of paper with separate explanations so that the enrollee “understands the distinction between the two bills.” If an enrollee has opted to receive electronic communications, the non-Hyde premium charges must be sent through separate emails.
Prior to implementation of this rule, insurers were permitted to collect a single premium payment from enrollees, and then split the payment into the separate accounts required by the prior regulation. The rule changes this process to now require that enrollees submit two distinct premium payments — one for premium charges for non-Hyde services, and another for the remainder of the premium. In order to implement this change, insurers will be required to send clear instructions to enrollees to explain the need to pay the two charges through separate transactions, such as two distinct credit card charges. Enrollees who do not pay their full monthly premium (including the separate charge for non-Hyde services) risk having their coverage terminated by their insurer. Insurers are allowed to offer consumers a grace period (usually 90 days) during which consumers can reconcile missed payments before terminating coverage.
Stakeholder comments submitted when the rule was proposed cited concerns that multiple bills and payments could create confusion for enrollees. In an attempt to mitigate these losses, HHS indicated it will not take enforcement action against insurers that do not terminate enrollee coverage because the consumer did not pay the separate bill, at least not until new regulations are put in place to provide additional guidance on these requirements. The rule also suggest that insurers may leverage allowable “premium disregard thresholds” as one tool to aid consumers who may have missed making a separate payment, for example, the insurer will not terminate coverage as long as 99 percent of the premium is paid during a set amount of time.
Finally, the rule provides insurers with a new option to allow enrollees to opt-out of coverage of non-Hyde services by not paying the second premium. This option would fundamentally change the plan consumers were enrolled in for the year, as well as their premium costs, which is a potentially significant change for an insurer to bear in the middle of a plan year. The regulation grants deference to state law and/or health insurance marketplace certification requirements that prohibit such mid-year changes. This option also may not apply in states that mandate coverage of non-Hyde abortion services on private health insurance plans (CA, IL, ME, NY OR, and WA).
Expected to Cost Marketplaces and Insurers Millions
As stated by commenters and reflected in the final rule, implementation of these changes will require insurers or state-based marketplaces that perform premium billing on behalf of insurance (including MA, RI, and VT) to make “changes to nearly every aspect of the enrollment and billing process.” HHS estimates the rule will impose one-time costs of nearly $4.1 million to each insurer or marketplace that must institute these changes, plus an additional cost of nearly $1.1 million annually to maintain operation of the rule.
In total, insurers and marketplaces are estimated to spend more than $550 million to implement this rule between 2020 and 2022. HHS estimates that these additional costs will result in premium increases to consumers. While premiums have already been set for the 2020 plan year, HHS estimates that these changes will result in a 1 percent increase in premiums per year beginning in plan year 2021.
These estimates do not include additional expenditures that might be made by all health insurance marketplaces, brokers, and other agencies to ensure systems are in compliance with the new regulations and to conduct outreach and education to mitigate confusion among consumers who will now receive multiple monthly bills. HHS estimates that the 12 state-based marketplaces alone will spend a total of $24.6 million from 2020 to 2024 to implement these such changes. In the case of marketplaces that do premium billing, these charges are in addition to those outlined above.
Outlook for States’ Insurance Markets
The billing changes made by this rule are slated to go into effect on June 27, 2020, which gives states and insurers limited time to prepare the systems and outreach materials that will be needed to smoothly implement this change. HHS acknowledges that the rule may result in coverage losses, caused in part by confusion and the additional burden put on consumers to understand and follow through on making separate premium payments. Reductions in enrollment could affect a health plan’s risk mix and lead to additional changes in premiums. HHS also acknowledges that insurers may choose to drop coverage options to avoid the burden of implementing the rule, which would reduce the number of choices available to consumers in the marketplaces.
The National Academy for State Health Policy will continue to track this issue as state regulators coordinate with insurers on implementation of these rules and monitor impacts of these changes on markets.
What States Did in 2019 to Address Health Coverage and Costs
Early in 2019, more than 20 governors identified affordable insurance coverage and rising health care costs as critical policy issues that needed to be addressed in their state of the state addresses. Highlighted below are some of the significant steps states took in the past 12 months to expand coverage and tackle health costs, including expanding Medicaid, establishing new coverage programs, transitioning from the federally-facilitated marketplace to state-based exchanges, and continuing efforts to rein in drug prices.
Read the companion blog, How States Addressed Health-Related Social and Economic Factors in 2019
Expanding Coverage
Washington State enacted a first-in-the-nation quasi-public option requiring the state’s Health Care Authority to contract directly with at least one commercial carrier to offer coverage through the state’s health insurance marketplace. This ensures individuals who are eligible for cost-sharing subsidies will be able to choose the public option without losing their advanced premium tax credit. The law requires standard plan design that provides specific benefits and limits consumer cost sharing. Further, the law allows the state to regulate certain health care prices, such as provider and facility reimbursement rates, which will be capped at 160 percent of Medicare rates.
The Colorado legislature passed a similar bill with support from Gov. Jared Polis that requires the state to develop a proposal for an affordable state coverage option. In November, the state finalized its proposal to allow residents who buy individual health insurance to purchase a state public option plan. If approved by the state legislature and the federal government, coverage under the option will begin in January 2022.
California enacted a law to provide government-subsidized health benefits to undocumented immigrants. California had been one of six states plus Washington, DC to use state funds to cover income-eligible children regardless of their immigration status. The new law expands coverage to undocumented, income-eligible young adults through age 25, expanding the availability of state-subsidize health care to more Californians.
Maine implemented the Affordable Care Act’s (ACA) Medicaid expansion two years after voters passed it by ballot referendum because the previous governor refused to implement the policy. As she promised, Gov. Janet Mills enforced the law and sought federal approval to extend Medicaid coverage to about 36,000 Mainers.
Georgia Gov. Brian Kemp announced in his state of the state address that he included $1 million in the budget to craft state flexibility options for Georgia’s Medicaid program. Kemp then worked with the legislature to pass the Patients First Act, authorizing the state to seek federal approval for waivers to implement an alternative Medicaid expansion model and to pursue a range of options affecting individual market coverage. The state released draft versions of those waivers this fall. The state is now seeking approval to operate its own coverage subsidy program that would include a cap on enrollment if costs reach a certain threshold. The initiative would also allow consumers to purchase state-certified, non-qualified health plans that will not be required to meet quality health plan standards, such as the Essential Health Benefit. The state’s 1115 wavier seeks to expand Medicaid to residents earning up to 100 percent of the federal poverty line, and it includes a work requirement.
Marketplace Transitions
There has been increased interest among states that used the federally facilitated marketplace (FFM)to transition to state-based marketplaces (SBM). Nevada was the first to transition from the federal platform to an entirely state-run marketplace. It launched this year in time to enroll individuals into qualified health plans for plan year 2020. In making this shift, Nevada will have more autonomy over operations, can tailor policies for its residents’ unique needs, and expects to save millions of dollars.
New Jersey, Pennsylvania, and Maine are on track to follow in Nevada’s footsteps. In announcing Maine’s plans to create its own marketplace by plan year 2021, Mills noted that states operating their own SBMs have performed better on both enrollment and reducing cost of premiums than those using the FFM. Transitioning to a state-based marketplace allows states flexibility, such as working with health plans to extend the open enrollment period, as well as increasing access to enrollment data and targeting outreach funding.
Increasing Affordability
This year, states took a wide variety of approaches seeking to increase health care affordability for consumers, including the establishing of reinsurance programs, creating spending growth targets, and increasing subsidies through tax credits for middle-class marketplace enrollees. In the absence of federal action, a growing number of states are also helping patients avoid costly surprise medical bills.
Reinsurance programs can lower premiums and stabilize markets by offsetting the costs of more-expensive claims for carriers. During the 2019 legislative session, with support from its governor, Colorado joined 11 other states that currently operate reinsurance programs. Since the program received federal approval, health insurance rates fell an average of 20.2 percent in the state. Officials predict that lower premiums may encourage uninsured Coloradans to purchase coverage and lower the overall uninsured rate in the state.
In Rhode Island, Gov. Gina Raimondo signed an executive order establishing a 3.2 percent growth target for health care spending. The executive order charges the state’s Office of Health Insurance and the Executive Office of Health and Human Services to engage providers, insurers, and community partners in the initiative, and to issue annual reports to track the state’s progress in meeting health spending targets.
Lawmakers in California went a different route and established a state-level individual health insurance mandate similar to the original provision in the ACA that is no longer enforced, joining Massachusetts, New Jersey, Vermont and Washington, DC. They also allocated state funds to extend tax credits to help offset premiums for middle-class Californians who earn between 400 and 600 percent of the federal poverty limit who enroll in a health plan through the state’s marketplace. The mandate penalty is expected to generate about $295 million next year to help fund the subsidies that will make individual coverage more affordable for the middle class.
In Nevada, Gov. Steve Sisolak signed a bill into law to prohibit the practice of surprise balance billing. The law holds patients harmless for surprise balance medical bills, only requiring enrollees to pay applicable cost-sharing amounts. The law creates a binding arbitration process that requires insurers and providers to submit their proposed reimbursement rates to a neutral arbitrator who selects one of the parties’ rates. Nevada joined other states that have taken action to protect consumers from unexpected medical bills this year.
Addressing Prescription Drug Costs
NASHP has been tracking state legislative action on drug costs since 2016. This year, states continued to take steps to rein in drug costs, from passing legislation to create wholesale drug importation programs to regulating pharmacy benefit managers (PBMs) more aggressively.
Following Vermont’s lead, Florida, Colorado and Maine enacted laws to start the process of creating a wholesale importation program to import drugs from Canada at lower prices. While states will need federal approval to implement their programs, the Trump Administration released the Safe Importation Action Plan that lays the foundation for the federal rule-making process. Rules to implement the program are expected to be released by the Administration this week.
States continued efforts to better understand PBM operations and regulate them. At an administrative level, Ohio, Washington, and West Virginia asserted their purchasing power to capture savings for Medicaid through more active oversight of prescription drug benefits. In Nevada, lawmakers gave their Department of Health and Human Services the option to carve pharmacy benefits out of Medicaid managed care contracts so the state could negotiate directly with manufacturers. Carving out the pharmacy benefit gives the department direct control over negotiations with PBMs and ensures that any rebates or discounts from drug manufacturers flow to the state rather than a third party. Maine took a different approach and now requires more health plan oversight of PBMs. By tasking carriers with PBM monitoring responsibilities, Maine is using its Bureau of Insurance regulatory authority to enforce other provisions of its PBM law.
The new PBM law in Maine was just one piece of a comprehensive suite of legislation aimed at controlling drug costs in the state. Three additional new laws include updates to Maine’s existing drug transparency program, the creation of a drug affordability board, and support for the state to pursue a wholesale drug importation program. These laws work in conjunction with each other to create an infrastructure through which the state can gather actionable data and hold all players in the drug supply chain accountable.
While this summary doesn’t capture all of the activity and progress made by states during 2019 to expand coverage, increase affordability, and address costs, it shows the diversity of actions that states have taken. As we look ahead to 2020, we anticipate states will continue to make health coverage and costs a priority. The National Academy for State Health Policy will continue tracking those efforts, sharing promising practices, and supporting states in their health care goals.
States Continue to Implement Surprise Medical Billing Protections
By Christina Cousart
Updated June 24, 2019
During the 2019 legislative session, states have continued to advance protections for consumers against surprise medical balance bills – charges for unexpected, out-of-network medical care. To date, four new states have enacted multi-pronged policies that prohibit balance bills, institute a process for providers and carriers to resolve billing disputes, and foster pricing transparency between providers, carriers, and consumers to avoid situations that lead to balance bills. Texas also approved legislation strengthening its existing consumer protections. Here are highlights of the new legislation.
| Colorado (HB 1174) | Nevada (AB 469) | New Mexico (SB 337) | Texas (SB 1264; HB 2041)[1] | Washington (HB 1065) | |
| Balance billing protections | |||||
| Holds consumers harmless | ✓ | ✓ | ✓ | ✓* | ✓ |
| Prohibition in case of emergencies |
✓ | ✓[2] | ✓ | ✓[3] | ✓ |
| Prohibition in case of out-of-network (OON) services delivered at an in-network facility |
✓[4] | ✓[5] | ✓[6] | ✓ | |
| Applicable providers/ facilities |
Person who is licensed or otherwise authorized in the state to furnish health care services including: ● Physicians ● Dentists ● Optometrists ● Anesthesiologists ● Hospitals ● X-ray ● LaboratoryExcludes ambulance providers, but charges the insurance commissioner with setting payment methods for ambulance services. |
Physician or other health care practitioner who is licensed or otherwise authorized in this state to furnish any health care service; and institutions providing health care services including: ● Hospitals ● Surgical centers for ambulatory patients ● Skilled nursing facilities ● Residential facilities for groups ● LaboratoriesEmergency facilities include hospitals or independent centers for emergency medical care |
Licensed health care professionals, hospitals, or other facilities licensed to furnish health care.Facilities include entities providing health care services including: ● Hospitals; ● Ambulatory surgical centers; ● Birth centers; ● Drug and alcohol treatment centers; ● Laboratory, diagnostic, and testing centers; ● Health provider’s offices or clinics ● Urgent care centers ● Freestanding emergency rooms ● Therapeutic health care settings |
Individual licensed under the laws of this state to practice medicine or health care facilities.Facilities include: ● hospitals; ● Licensed ambulatory surgical centers ● Licensed chemical dependency treatment facility ● Renal dialysis facilities ● Birthing centers; ● Rural health clinics; ● Federally qualified health centers ● Freestanding imaging centers; ● Freestanding emergency medical care facilities* |
Person licensed under state law to practice health or health-related services, or an employee or agent of such a person acting in the scope of their employment.Facilities include: ● Hospices ● Hospitals ● Rural health care facilities ● Psychiatric hospitals ● Nursing homes ● Community mental health center ● Kidney disease treatment centers ● Ambulatory diagnostic treatment or surgical facilities ● Drug and alcohol treatment facilities; ● Home health agencies.Carriers may not balance bill in the case of emergency services delivered by out-of-state providers. |
| Billing dispute and resolution procedures | |||||
| Reimbursement standard | For emergency services the greater of: ● In non-Denver areas: o 105% of carrier’s median in-network rate for services provided at a similar facility in the same geographic area; or o Median in-network rate for the same service at a similar facility in the same geographic area based on all-payer claims database (APCD) data. ● In the Denver area: o Carrier’s median in-network rate for the same service in a similar facility in the same geographic area; o 250% Medicare rate for the same service in a similar facility in the same geographic area; or o Median in-network rate for the same service in a similar facility in the same geographic area based on APCD data. For OON services at an in-network facility, the greater of: |
For facilities: ● 108% of the previously contracted rate if the facility had been in-network within the last 12 months.● 115% of the previously contracted rate if the facility had been in-network within the last 12-24 months.● If no such contract existed, an amount the carrier determines to be fair and reasonable.For providers:If a provider had been in-network within the past 12 months: ● The previously contracted rate, if the provider terminated the contract before it was set to expire without cause; ● 108% of the previously contracted rate if the provider terminated the contract for cause; ● A fair and reasonable amount, determined by the carrier, if the carrier terminated the contract for cause; ● The previously contracted rate adjusted by the Consumer Price Index, Medical Care Component for the prior year, if neither party terminated the contract.If a provider had not been in-network in the preceding 12 months, carrier may remit whatever payment it determines. |
A 60th percentile of the allowed commercial reimbursement rate for the service performed by a provider in a similar specialty in the same geographic area.
Should not be less than 150% of 2017 Medicare rate. A stakeholder group will convene annually to review the reimbursement rate. |
The usual and customary rate or an agreed-to rate, meaning the allowable amount as described by the applicable master benefit plan document or policy.* | Commercially reasonable amount based on similar services provided in a similar geographic area. |
| Process for arbitration | Baseball arbitration (arbiter will pick the final payment offer submitted by either the health plan or the provider/facility), if carrier and provider do not agree to initial payment.
Arbiter will consider: |
Arbiter will either require the provider to accept the payment issued by the carrier as payment in full, or to demand that the carrier remit an additional amount requested by the provider. | Mediation may be requested through the Department of Insurance.[7]
In the case of mediation of facilities, the mediator shall determine if the amount charged by provider is excessive, and if the amount paid by the insurer is unreasonably low or not the usual and customary rate. In the case of mediation for other providers, the mediator shall take into account whether there is gross disparity between the amount charged by the provider and how much the provider or similarly qualified providers receive for similar services. Other factors may include:* |
Baseball arbitration (arbiter will pick the final payment offer submitted by either the health plan or the provider/facility), if carrier and provider do not agree to initial payment.
Arbiter may consider: |
|
| Data collection and reporting tools | State APCD | Benchmarking database maintained by a nonprofit organization specified by the insurance commissioner.
Enables the commissioner to require carriers to report: |
The insurance commissioner is charged with selecting an organization to maintain a benchmarking database. | Requires state APCD to establish a dataset that provider, facilities, and carrier s may use to determine reasonable rates and to resolve payment disputes.
Carriers shall provide information concerning the utilization of OON providers and cost savings yielded from the law as part of their annual rate filing. |
|
| Penalties | |||||
| Provider must refund excess payments made by consumers |
✓[8] | ✓[9] | ✓[10] | ||
| Penalty for violations | ✓[11] | ✓[12] | ✓[13]* | ✓[14] | |
| Transparency standards | |||||
| Must provide disclosure of potential repercussions of OON services |
● Carriers ● Providers |
● Providers[15] | ● Carriers ● Providers |
||
| Requires cost estimates to consumers |
✓[16] | ✓[17] | |||
| Additional requirements: | On carriers: ● Must arrange for patient transfer within 24 hours of receiving notice that person is stable and can be transferred.On providers: ● Must send notice to carrier, no later than eight hours after person presents at an OON facility ● Must send notice to carrier that the beneficiary has stabilized and may be transferred to an in-network facility within 24 hours of stabilization |
On carriers: ● Must make claims status information available to providers.On providers: ● Must post in a publicly accessible manner and online information about which carriers it contracts with. ● Must notify the carrier of a beneficiary’s admission within a reasonable period after stabilization. ● Any communication regarding bills, shall clearly state that the beneficiary is responsible only for in-network cost sharing amounts. |
On carriers: ● Explanation of benefits must include information about balance billing protections; the total amount the provider may bill the enrollee under the enrollee’s health benefit plan; and an itemization of cost-sharing included in that total.* [18] On providers: ● Facilities must post notice that o it may charge a facility fee o it may charge rates comparable to a hospital emergency room o the facility or a physician at the facility may be OON and bill separately o Lists all the carriers it contracts with ● Facilities must provide patients with a disclosure that:* o Lists the facility fees that may result from the visit o Lists the carriers the facility is in-network with o Lists other cost information such as median facility fees and observation fees. ● Prohibits facilities from using logos or language to misrepresent that it might be in an insurers network. |
On carriers: ● Must immediately arrange for an alternate plan of treatment if an agreement on post-stabilization services cannot be reached with the emergency provider. ● Must update provider directory within 30 days after the addition or termination of a provider.On providers: ● The provider must contact the carrier within 30 minutes of stabilization before rendering further services. ● Must post online information about which carriers it contracts with. ● Must provide carriers with updated lists of non-employed providers working at the facility |
*Indicates changes made by the new Texas law.
[1] Texas’ 2019 law amends and enhances already existing protections in the state. Changes made by the new law are noted by asterisk.
[2] Does not apply when: 1) Services are received at a critical access hospital; 2) A person is covered by insurance sold outside of the state; 3) Services provided more than 24 hours after notification has been provided and a person has been stabilized.
[3] In the case of a beneficiary who cannot reasonably access a preferred provider, the protections extend to 1) medical screening and examinations require to determine if a medical emergency exists; 2) necessary emergency services to treat and stabilize; 3) services originating in an emergency facility following stabilization; and 4) supplies related to the services rendered by that facility.
[4] Does not apply if the consumer affirmatively consented to receive OON services.
[5] Only applies when; 1) A participating provider is unavailable; 2) Medically necessary care is unavailable in the beneficiary’s network (determined by the provider in conjunction with the health plan); or 3) the patient did not consent to receive services from the OON provider.
[6] Does not apply in the case of a beneficiary that elects, in writing and in advance, to receive services from the out-of-network provider, or in the case that the provider does provide the enrollee with a written disclosure that they are out-of-network and provides an estimate of the projected amount the enrollee will be responsible for. Explicitly includes protections for OON services delivered by diagnostic imaging or labs.
[7] Prior law allowed mediation requests only in the case of claims over $500 and that were for either emergency services, or services rendered by a provider or supplier at an in-network facility.
[8] Refund must be issued within 60 days, or interest will accrue.
[9] Refund must be issued within 45 days, or interest will accrue.
[10] Refund must be issued within 30 days, or interest will accrue.
[11] Punished by a fine of not more than one thousand dollars, or by imprisonment in the county jail for not more than one year, or both.
[12] Insurance superintendent may impose a fine on any provider that offers an unlawful rebate or inducement to entice a person to seek OON services
[13] The Attorney General may bring civil action against entities that exhibit a pattern of repeatedly violating billing protections. Authorizes applicable agencies to take action against providers or facilities who violate billing protections. The Secretary of State may suspend or revoke a license, or bring civil action against entities who violate the disclosure requirements outlined under Texas law. The Department of Health may impose penalties up to $1,000 for certain violations.
[14] Authorizes the Department of Health or an appropriate authority to levy fines against providers or facilities who violate these policies. Commissioner may levy a fine against carriers who violate these policies. Repeated violation may constitute unprofessional conduct and risk licensure of a provider or facility.
[15] If an OON provider has advanced notice that the beneficiary is OON, they must notice the beneficiary of their OON status and recommend the beneficiary contact their carrier to discuss options.
[16] A provider must issue a cost estimate within three days if requested by a patient.
[17] Carrier must provide an estimate of out-of-pocket costs for OON services upon request.
[18] Applicable to Health Maintenance Organizations.
State Surprise Medical Billing Laws Can Inform the Congressional Debate
As Congress and the Trump Administration propose strategies to address surprise balance billing – charges for unexpected, out-of-network medical care – states have significant experience in implementing surprise billing laws that can inform the discussion. Importantly, state authority cannot protect individuals covered by self-insured plans, which are pre-empted by Employee Retirement Income Security Act (ERISA,) from state oversight. To extend protections to consumers covered by these plans federal action is needed either through mandated protections or a change in law to enable states’ laws to apply toward ERISA plans.
States’ approaches to addressing surprise balance bills vary in how they:
- Define what services are covered by these protections;
- Address how reimbursement for services should be resolved; and
- Define provider and insurer transparency requirements.
Through National Academy for State Health Policy’s (NASHP) work with states, it has identified the following themes and lessons from state laws and experiences that could help inform future federal action on surprise balance bills.
Broadly define services covered by the law.
Balance billing protections are strongest when they extend to both all emergency circumstances and situations where the consumer does not have control over the out-of-network (OON) services provided. Such situations can occur without consent of the patient when an in-network physician is unavailable, because of an unforeseen medical situation, and/or because of a direct referral to an OON provider or facility rendered by an in-network provider. Surprise balance billing laws that include provisions to extend protections broadly across multiple provider and facility types, including specialists, labs, imaging centers, and air and land ambulance transport, offer the strongest consumer protections.
Consider multiple factors when determining the law’s dispute resolution process.
Essentially, state laws take two approaches to resolve billing disputes for surprise balance bills – setting a specific reimbursement rate for such bills and/or defining an arbitration process through which providers and insurers can resolve payment disputes. Because many state balance billing laws are nascent — and have been implemented during a time of considerable policy change affecting health care markets — there is a lack of evidence identifying the ultimate effects, either positive or negative, of either approach on state health insurance markets, including their impact on premium costs and provider network composition. Both approaches have challenges. Setting reimbursement rates for balance bills can be challenging given the multiple stakeholders involved and there is time and expense to consider in establishing fair mediation or arbitration systems. Whatever strategy Congress adopts, states’ experiences suggests the following factors for consideration:
- Remove consumers from billing disputes. To maximize consumer protection from surprise balance bills, the process for resolving reimbursements should be kept between the insurer, the provider, and any agency appointed to aid in resolution. To encourage this, additional requirements may be put in place to foster direct communication between providers and insurers, such as a requirement that insurers alert providers about what, if any, ability they will have to balance bill for services rendered to the insurer’s beneficiary. (For example, multiple states require insurers to include this information in their Explanation of Benefits sent to providers.)
- Use of data sources that leverage claims data. By using this data, such as that collected by all-payer claims databases (APCDs), reference price amounts for negotiations for medical bills will be based on actual paid amounts, rather than billed amounts. The latter may lead to inflated rates and higher health care spending. However, not all states have APCDs. Including funding to support state APCD programs could be an impetus to improve access to needed claims data in every state. To assure the most robust data collection, however, requires Congressional action to amend ERISA or provide other means for states to mandate the collection of claims data from self-funded plans. The Supreme Court’s ruling in Gobeille v. Liberty Mutual currently prohibits such requirements. While states do encourage voluntary reporting with some success, a mandate would assure more consistency in reporting. One of the issues identified in the Gobeille decision was the burden on self-funded plans created by different reporting requirements in different states. Including reference to the common data layout developed by states would resolve that reporting burden question.
- Inadvertent effects on provider networks and contracts. The ultimate reimbursement rates paid to resolve surprise balance bills should provide sufficient compensation to providers, without incentivizing providers to stay OON. For example, a benchmark that provides payments set too high may incent providers to remain OON. However, payments set too low may impose negative impacts on providers already operating on the margins. To protect against the latter, reimbursement calculations may consider a variety of factors, including average payment amounts for similar services, geographic cost variation, provider experience, or other factors unique to the situation of the service performed.
- Set a fixed amount for consumer cost sharing. This added protection will guard consumers from potentially exorbitant out-of-pocket costs in the case that final reimbursement rate decisions on a balance bill result in large out-of-pocket cost-sharing for services from deductibles, coinsurance, etc.
Include prohibitions on billing practice and hold harmless protections.
The most protective strategy would be an explicit prohibition on the part of providers or insurers from balance billing patients. While this should absolve consumers from the surprise billing burden, the law should also be clear in holding consumers harmless in situations where a balance bill is being negotiated between insurers and providers. This may take the form of specifying what form of contact, if any, insurers and providers may take with consumers regarding billing disputes and prohibiting certain actions, like credit reporting, against consumers.
Encourage enforcement through federal penalties.
Because of their limited jurisdiction over providers and certain health plans, enforcing surprise billing protections has been a challenge for some states. A successful federal law would include an enforcement mechanism that would support additional compliance with surprise balance billing laws.
Include deference to existing state laws.
States, including those with robust balance billing protections, have taken very different approaches to crafting their laws. This wide variation reflects states’ diligent and deliberate work to find solutions to surprise balance billing that work best for their markets.
States’ experiences can inform Congressional proposals and deliberations to address balance billing – from requiring transparency about networks and service costs to establishing the processes to determine the reimbursement rate for an OON provider. States have acted to protect consumers, experimenting with a variety of strategies to protect consumers from unexpected financial exposure. Federal action can extend the reach of those protections to include consumers covered by self-funded, employer-based insurance, but it should consider how any new federal law will impact state progress in this important arena of consumer protection.
NASHP Updates Model Drug Price Transparency Legislation, Featuring a Common Data Set for Cross-State Comparisons and Stronger Enforcement
Maine state Sen. Eloise Vitelli presents legislation, based on NASHP’s new drug cost transparency model legislation, to the joint Committee on Health Coverage, Insurance and Financial Services.
As drug price transparency measures proliferate across states, the National Academy of State Health Policy (NASHP) has released revised model transparency legislation featuring a common data set to reduce reporter burden and yield standardized, actionable data that will be comparable across states. The data — to be reported by manufacturers, pharmacy benefit managers (PBMs), wholesalers, and insurers — will help state policymakers understand what is driving high drug prices through a comprehensive look across the entire drug supply chain.
This 2.0 version of NASHP’s model transparency bill also contains stronger penalties for failure to report. States will have the ability to audit any data submitted, and require a reporting entity to submit a corrective action plan for reporting deficiencies. If reporting entities do not provide the required data or if the data they provided is inadequate, the model bill allows states to invoke subpoena authority.
NASHP developed the model bill and common data set in collaboration with a work group of states currently implementing or considering transparency laws and Mathematica Policy Research. Last week, Maine State Sen. Eloise Vitelli introduced legislation based on NASHP’s updated model transparency legislation. The model bill is available in a streamlined formed as enabling legislation, as well in a longer, comprehensive version that includes in-depth information detailing the reporting requirements of the minimum data set. Additional information about the legislation, including reporting thresholds and data elements that must be reported, are available in this Q&A document. In coming weeks, NASHP will also publish customized reporting templates for manufacturers, PBMs, wholesalers, and insurers.
While NASHP’s model transparency bill builds off existing transparency measures, the common data set requires the collection of additional information not otherwise publically available, including specific information about past and projected costs and revenues at the individual drug level. Some of this information may be considered proprietary, and the model bill includes language to protect it while still requiring an annual report and public hearing to share and explore findings – although in a manner that does not reveal information specific to any one reporting entity. This reporting will provide states with more information to determine what drives high prices – and how to take effective action to address them.
States interested in this model legislation will have access to NASHP’s technical assistance. Please contact Jennifer Reck for more information.
Highlights of States’ ‘Surprise’ Medical Balance Billing Laws
Surprise balance bills occur when patients receive unanticipated charges for health care services because they were unaware that care was delivered by an out-of-network provider or facility. In some cases, surprise balance bills can amount to hundreds if not thousands of dollars in medical expenses.
A growing number of states have passed or are proposing laws to protect consumers with one or more of these safeguards:
- They prohibit balance billing in certain circumstances — usually when a consumer had no other provider choice;
- They hold consumers harmless when insurance carriers and providers dispute a balance bill;
- They set reimbursement standards for providers in the case of balance bills;
- They require providers and carriers to provide accurate and updated information about the provision of in- and out-of-network services; and
- They establish a balance billing dispute resolution process, facilitated by the state or an independent entity.
This chart highlights multiple safeguards that seven states have enacted to create a comprehensive strategy to regulate surprise balance billing. To date, at least 22 states have introduced legislation during this session to establish or strengthen surprise balance billing protections. NASHP will continue to monitor and report on new legislative developments.
State Legislative Action to Lower Pharmaceutical Costs
*Updated Oct. 4, 2018*
Find the status of state legislation to curb prescription drugs below. Use the category button to search by type of legislation or click on a state to view its drug bills. Click here to view a chart listing legislation by state. View state action in 2017 and 2015-2016.
Know about a bill to add or have information to update? Email Sarah Lanford.
This map and chart are supported by The Laura and John Arnold Foundation.
For individuals living with complex, often chronic conditions, and their families, palliative care can provide relief from symptoms, improve satisfaction and outcomes, and help address critical mental and spiritual needs during difficult times. Now more than ever, there is growing recognition of the importance of palliative care services for individuals with serious illness, such as advance care planning, pain and symptom management, care coordination, and team-based, multi-disciplinary support. These services can help patients and families cope with the symptoms and stressors of disease, better anticipate and avoid crises, and reduce unnecessary and/or unwanted care. While this model is grounded in evidence that demonstrates improved quality of life, better outcomes, and reduced cost for patients, only a fraction of individuals who could benefit from palliative care receive it. 
