Session of 2021
By Committee on Insurance and Pensions

1 AN ACT concerning insurance; relating to health insurers; healthcare
2 providers; billing practices; prohibiting balance bills and surprise
3 medical bills; providing for independent dispute resolution; requiring
4 the adoption of rules and regulations; creation of provider directories;
5 enacting the end surprise medical bills act.
7 Be it enacted by the Legislature of the State of Kansas:
8 Section 1. Sections 1 through 7, and amendments thereto, shall be
9 known and may be cited as the end surprise medical bills act.
10 Sec. 2. As used in the end surprise medical bills act:
11 (a) "Balance bill" means a claim for payment for services provided to
12 a covered person that is in an amount equal to the difference between the
13 actual amount charged by a health insurer with respect to services or care
14 described in subsection (j) and the expected in-network cost-sharing
15 required by the covered person under the health benefit plan or coverage
16 involved.
17 (b) "Commissioner" means the commissioner of insurance.
18 (c) "Covered person" means a member, policyholder, subscriber,
19 covered person, beneficiary, dependent or other individual participating in
20 a health benefit plan.
21 (d) "Department" means the insurance department.
22 (e) "Health benefit plan" means the same as provided in K.S.A. 40-
23 4602, and amendments thereto. "Health benefit plan" includes any small
24 employer group policy, as provided in K.S.A. 40-2209, and amendments
25 thereto, any policy of health insurance purchased by an individual and the
26 state employee healthcare benefits plan.
27 (f) "Healthcare provider" means the same as provided in K.S.A. 40-
28 3401, and amendments thereto.
29 (g) "Health insurer" means the same as provided in K.S.A. 40-4602,
30 and amendments thereto.
31 (h) "Independent dispute resolution process entity" or "entity" means
32 a party that has been certified by the process described in section 5(b), and
33 amendments thereto, and that has been selected to determine the amount
34 that a health benefit plan or health insurer that offers health insurance in
35 the group market shall pay an out-of-network healthcare provider.
36 (i) "Independent dispute resolution process" or "IDR process" means
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1 the process described in section 5(a), and amendments thereto.
2 (j) "Surprise medical bill" means a balance bill that a covered person
3 receives for services provided to the covered person where such services
4 were:
5 (1) Emergency medical services provided by an out-of-network
6 healthcare professional or at an out-of-network facility that was the closest
7 healthcare facility to the patient's physical location at the time of the
8 emergency medical event;
9 (2) healthcare services that were provided:
10 (A) At an in-network facility by an out-of-network healthcare
11 professional; or
12 (B) in consultation with inaccurate provider directories; or
13 (3) (A) additional healthcare services required in the case of a
14 covered person who initially enters a hospital through the emergency room
15 for emergency services, and then receives nonemergency services from an
16 out-of-network healthcare professional or at an out-of-network hospital or
17 facility after the covered person has been stabilized, as defined in 42
18 U.S.C. § 300gg-19a (b)(2)(C), as determined by the treating physician.
19 (B) "Surprise medical bill" does not include a bill that a covered
20 person receives for services provided to the covered person under
21 circumstances when such covered person who is stabilized and able to
22 travel in nonmedical transport, and the covered person, or the covered
23 person's designee if the covered person is not able to comprehend the
24 information to be provided or make related decisions, has:
25 (i) Been provided with clear, written notification that the professional
26 or facility is an out-of-network healthcare professional or facility;
27 (ii) been given a cost estimate for services provided by the out-of-
28 network healthcare professional or facility; and
29 (iii) assumed, in writing, full responsibility for out-of-pocket costs
30 associated with such out-of-network care.
31 Sec. 3. (a) A health benefit plan, health insurer offering health
32 insurance coverage in the group market or healthcare provider shall not
33 engage in balance billing practices for services provided:
34 (1) In hospitals and ambulatory surgery centers, as those terms are
35 defined in K.S.A. 65-425, and amendments thereto, emergency rooms and
36 state-accredited freestanding emergency departments; and
37 (2) at healthcare provider offices and for related services ordered by
38 an in-network healthcare provider and provided by an out-of-network
39 healthcare provider or laboratory. Such services shall include, but not be
40 limited to, laboratory and imaging services.
41 (b) A covered person shall only be liable for the in-network cost-
42 sharing amount provided for in the covered person's plan or coverage, and
43 payments made by the covered person for such cost-sharing shall count
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1 toward the covered person's in-network deductible and out-of-pocket
2 maximum limitation.
3 (c) The commissioner shall enforce the provisions of this section. The
4 provisions of this section shall not apply to a health insurer, healthcare
5 provider or health benefit plan that unknowingly balances bills on a
6 covered person and reimburses such covered person within 30 calendar
7 days of such billing.
8 Sec. 4. (a) (1) A health benefit plan, health insurer offering health
9 insurance coverage in the group market or healthcare provider shall not
10 issue a covered person a surprise medical bill.
11 (2) A health benefit plan, health insurer offering health insurance
12 coverage in the group market or healthcare provider shall offer to pay the
13 median in-network rate under the plan or coverage, less the applicable
14 covered person's in-network cost-sharing, directly to the healthcare
15 provider.
16 (b) The healthcare provider may accept payment under subsection (a)
17 (2), or the health benefit plan or health insurer shall provide information to
18 the healthcare provider about how the healthcare provider may initiate
19 independent dispute resolution under section 5, and amendments thereto,
20 with respect to such payment. The plan, issuer or provider may negotiate
21 an alternative amount or initiate independent dispute resolution under the
22 provisions of section 5, and amendments thereto, during the 30-calendar
23 day period beginning on the date that the automatic payment was made
24 under this section.
25 Sec. 5. (a) On or before July 1, 2022, the commissioner, in
26 consultation with the governor, shall establish an IDR process for
27 resolving payment disputes between health benefit plans or health insurers
28 offering health insurance coverage in the group market and out-of-network
29 healthcare providers involved in surprise medical bill disputes in
30 accordance with section 4, and amendments thereto.
31 (b) A party wishing to participate in the IDR process under subsection
32 (a) shall request certification from the commissioner. The commissioner, in
33 consultation with the governor, shall determine eligibility of applicant
34 parties, taking into consideration whether the party is independent and
35 unaffiliated with the insurance industry and with healthcare providers and
36 is free of conflicts of interest, in accordance with any relevant criteria
37 relating to conflicts of interest set by the commissioner through rules and
38 regulations.
39 (c) Under the process established under subsection (a), the parties in
40 the IDR process shall jointly agree upon an entity. In the event that the
41 parties cannot agree, an entity shall be selected at random by the
42 department of labor.
43 (d) (1) The IDR process may occur in disputes involving one or more
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1 current procedural terminology, CPT codes.
2 (2) Group health plans, health benefit plans, health insurers,
3 healthcare providers and healthcare facilities may batch claims if they
4 involve:
5 (A) Identical parties to the disputes;
6 (B) claims with the same or related CPT codes relevant to a particular
7 procedure; and
8 (C) claims that occur within 30 calendar days of each other.
9 (e) (1) An entity that receives a request for resolution under this
10 section, no later than 30 days after receiving such request, shall determine
11 the amount the health benefit plan or health insurer offering health
12 insurance coverage in the group market is required to pay the out-of-
13 network health care provider. Such amount shall be:
14 (A) The amount determined by the parties through a settlement,
15 pursuant to paragraph (2); or
16 (B) an amount determined reasonable by the entity, in accordance
17 with paragraph (3).
18 (2) If the entity determines, based on the amounts indicated in the
19 request under this section, that a settlement between the health benefit plan
20 or health insurer offering health insurance coverage in the group market
21 and the out-of-network health care provider is likely, the entity may direct
22 the parties to attempt, for a period not to exceed 10 calendar days, a good
23 faith negotiation for a settlement. Such 10-day period shall accrue towards
24 the 30-day period required under paragraph (1).
25 (3) (A) In the absence of a settlement under paragraph (2), the health
26 benefit plan or health insurer offering health insurance coverage in the
27 group market and the out-of-network healthcare provider shall each submit
28 to the entity their final offers. Such entity shall determine which of the two
29 amounts is more reasonable based on the factors described in
30 subparagraph (D).
31 (B) The amount that the entity determines to be the more reasonable
32 amount under subparagraph (A) shall be the final decision of the entity as
33 to the amount the health benefit plan or health insurer offering health
34 insurance coverage in the group market shall be required to pay to the out-
35 of-network healthcare provider.
36 (C) A final determination under subparagraph (B) may include the
37 resolution of disputes for multiple items or services if such determination
38 is in regard to items or services that are eligible for independent dispute
39 resolution due to the batching of claims.
40 (D) In determining which final offer to select as the more reasonable
41 amount under subparagraph (A), the entity shall consider relevant factors
42 including, but not limited to:
43 (i) Commercially reasonable rates for comparable services or items
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1 offered in the same geographic area; and
2 (ii) other factors that may be submitted at the discretion of either
3 party, or at the entity's request.
4 (E) A final determination made by an entity under subparagraph (B)
5 shall:
6 (i) Be binding; and
7 (ii) not be subject to judicial review, except in cases comparable to
8 those described in 9 U.S.C. § 10(a), as determined by the commissioner in
9 consultation with the governor, and cases in which information submitted
10 by one party was determined to be fraudulent.
11 (4) In conducting an IDR process under this subsection, an entity
12 shall comply with all applicable state and federal privacy laws.
13 (5) The reasonable amount determined by an entity under this
14 subsection with respect to any claim shall not be confidential, except that
15 information submitted to the entity shall be kept confidential. Entities may
16 consider past decisions awarded by other entities during the IDR process.
17 (6) The non-prevailing party shall be responsible for paying all fees
18 charged by the entity. If the parties reach a settlement prior to the
19 completion of the IDR process, the costs of the IDR process shall be
20 divided equally between the parties.
21 (7) Health benefit plans and health insurers offering health insurance
22 coverage in the group market shall pay directly to the out-of-network
23 healthcare provider the amount determined by the entity within 30 days of
24 the final determination. A plan or insurer that fails to comply with this
25 paragraph shall be subject to a civil monetary penalty set by the
26 commissioner through rules and regulations.
27 Sec. 6. (a) If a patient schedules an appointment with an out-of-
28 network healthcare provider, the healthcare provider shall make a
29 reasonable effort to notify the patient within 48 hours of scheduling the
30 appointment that the provider is not a member of the patient's health
31 benefit plan's provider network.
32 (b) Within 48 hours, healthcare providers shall notify health insurers
33 that offer health insurance in the group or market of any personnel change
34 or other factor that could impact the accuracy of insurer provider
35 directories.
36 (c) (1) A health insurer that offers health insurance in the group
37 market shall post on its website a current and accurate electronic provider
38 directory for each of its network plans including the information described
39 in subsection (g). Such online provider directory shall be easily accessible
40 in a standardized, downloadable, searchable and machine-readable format.
41 (2) In making the provider directory available online, the insurer shall
42 ensure that the general public is able to view all of the current providers
43 for a network plan through a clearly identifiable link or tab without
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1 creating or accessing an account or entering a policy or contract number.
2 (3) The insurer shall update each network plan on the online provider
3 directory not less than once every 30 calendar days.
4 (d) For each network plan, an insurer shall include in plain language:
5 (1) A description of the criteria the insurer has used to build its
6 provider network;
7 (2) if applicable, a description of the criteria the insurer has used to
8 tier providers;
9 (3) if applicable, how the insurer designates the different provider
10 tiers, such as by name, symbols or grouping, in the network and for each
11 provider in the network and in which tier each provider is placed to
12 facilitate a covered person's or a prospective covered person's ability to
13 identify the provider tier; and
14 (4) if applicable, a notice that authorization or referral may be
15 required to access some providers.
16 (e) The insurer shall make clear for both its electronic and print
17 directories the provider directory that applies to each network plan by
18 identifying the specific name of the network plan as marketed and issued
19 in the state.
20 (f) Provider directories, whether in electronic or print format, shall be
21 accessible to individuals with disabilities and individuals with limited
22 English proficiency as defined in 45 C.F.R. § 92.201 and 45 C.F.R. §
23 155.205(c).
24 (g) The insurer shall make available through an online provider
25 directory, for each network plan, the following information:
26 (1) For healthcare professionals:
27 (A) Name;
28 (B) gender;
29 (C) contact information;
30 (D) participating office location or locations;
31 (E) specialty, if applicable;
32 (F) board certifications, if applicable;
33 (G) medical group affiliations, if applicable;
34 (H) participating facility affiliations, if applicable;
35 (I) languages spoken other than English by the healthcare
36 professional or clinical staff, if applicable;
37 (J) tier; and
38 (K) whether they are accepting new patients;
39 (2) For hospitals:
40 (A) Hospital name;
41 (B) hospital type;
42 (C) participating hospital location;
43 (D) hospital accreditation status; and
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1 (E) contact information; and
2 (3) For facilities other than hospitals:
3 (A) Facility name;
4 (B) facility type;
5 (C) types of services performed;
6 (D) participating facility location or locations; and
7 (E) contact information.
8 (h) The insurer shall include in its online and print directories a
9 clearly identifiable telephone number and a dedicated email address or a
10 link to a dedicated webpage that covered persons or the general public
11 may use to report to the insurer inaccurate information listed in the
12 provider directory. Whenever an insurer receives such a report, it shall
13 promptly investigate such report. Not later than 30 calendar days following
14 receipt of such report, the insurer shall either verify the accuracy of the
15 information or update the information, as applicable.
16 (i) An insurer shall take appropriate steps to ensure the accuracy of
17 the information concerning each provider listed in the insurer's provider
18 directory and shall, no later than January 1, 2022, review and update the
19 entire provider directory for each network plan offered. Thereafter, the
20 insurer shall annually audit a reasonable sample size of its provider
21 directories for accuracy, retain documentation of such audit, make such
22 documentation available to the commissioner up