[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. 1233 Introduced in Senate (IS)]







104th CONGRESS
  1st Session
                                S. 1233

To assure equitable coverage and treatment of emergency services under 
                             health plans.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

           September 12 (legislative day, September 5), 1995

 Ms. Mikulski introduced the following bill; which was read twice and 
         referred to the Committee on Labor and Human Resources

_______________________________________________________________________

                                 A BILL


 
To assure equitable coverage and treatment of emergency services under 
                             health plans.
    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Access to 
Emergency Medical Services Act of 1995''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title.
Sec. 2. Findings; purposes.
Sec. 3. Assuring equitable health plan coverage with respect to 
                            emergency services.
Sec. 4. Requirements for medicare and medicaid managed care.
Sec. 5. Effect on State law.
Sec. 6. Enforcement.
Sec. 7. Regulations.
Sec. 8. Definitions.
Sec. 9. Effective dates.
Sec. 10. Report on application to plans including medical savings 
                            accounts.
SEC. 2. FINDINGS; PURPOSES.

    (a) Findings.--The Congress finds the following:
            (1) Federal medicare law requires emergency physicians and 
        other providers to evaluate, treat, and stabilize any 
        individual seeking treatment in a hospital emergency 
        department.
            (2) This law specifically prohibits emergency physicians 
        from delaying any treatment needed to evaluate or stabilize an 
        individual in order to determine the health insurance status of 
        the individual.
            (3) Many health plans routinely deny payment for these 
        Federally-required emergency services furnished to their 
        enrollees, basing such denials on--
                    (A) failure to obtain prior approval of such 
                services from the plan, or
                    (B) an after-the-fact determination that the 
                medical condition identified through the Federally-
                required evaluation was not an emergency medical 
                condition.
            (4) These denials by health plans impose significant 
        financial burdens on--
                    (A) their enrollees who, based on symptoms that 
                reasonably suggest a medical emergency, prudently seek 
                care in a hospital emergency department, and
                    (B) emergency physicians, the hospital emergency 
                departments, and others involved in furnishing 
                emergency services to the enrollees.
            (5) These burdens discourage enrollees from seeking 
        emergency care in cases where it is appropriate and, 
        ultimately, threaten the financial livelihood of hospital 
        emergency departments in providing emergency services to the 
        entire population, including beneficiaries of the medicare and 
        medicaid programs and of other Federal health care programs.
            (6) Health plans have engaged in practices that discourage 
        the appropriate use of the 911 emergency telephone number and 
        may adversely impact on the health of enrollees.
    (b) Purposes.--The purposes of this Act are--
            (1) to require health plans to cover and pay for their fair 
        share for emergency services that hospital emergency 
        departments are required to provide;
            (2) to protect health plan enrollees by establishing a 
        uniform definition of emergency medical condition that is based 
        on the average knowledge of a prudent layperson;
            (3) to prohibit health plans from requiring prior approval 
        for Federally-required emergency services; and
            (4) to assure that health plans promote the appropriate use 
        of the 911 emergency telephone number.

SEC. 3. ASSURING EQUITABLE HEALTH PLAN COVERAGE WITH RESPECT TO 
              EMERGENCY SERVICES.

    (a) Prohibition of Contractual Limitations on Coverage of Emergency 
Services.--A health plan that provides any coverage with respect to 
emergency services shall cover emergency services furnished to an 
enrollee of the plan--
            (1) without regard to whether or not the provider 
        furnishing the emergency services has a contractual or other 
        arrangement with the plan for the provision of such services to 
        such enrollees, and
            (2) without regard to prior authorization.
    (b) Prohibition of Discriminatory Payment or Cost-Sharing.--
            (1) In general.--A health plan that provides any coverage 
        with respect to emergency services--
                    (A) shall determine and make prompt payment in a 
                reasonable and appropriate amount for such services 
                (including services required to
                 be provided under section 1867 of the Social Security 
Act), and
                    (B) subject to paragraph (2), may not impose cost-
                sharing for services furnished in a hospital emergency 
                department that is calculated in a manner (such as the 
                use of a different percentage) that imposes greater 
                cost sharing with respect to such services compared to 
                comparable services furnished in other settings.
            (2) Imposition of reasonable copayment permitted.--A health 
        plan may impose a reasonable copayment (as determined in 
        accordance with standards established by the Secretary) in lieu 
        of coinsurance to deter inappropriate use of services of 
        hospital emergency departments.
    (c) Assuring Timeliness of Prior Authorization Determination for 
Needed Care Identified in Initial Evaluation.--
            (1) In general.--
                    (A) Access to process.--If an enrollee of a health 
                plan receives emergency services from an emergency 
                department pursuant to a screening evaluation conducted 
                by a treating physician or other emergency department 
                personnel and pursuant to the evaluation such physician 
                or personnel identifies items and services (other than 
                emergency services) promptly needed by the enrollee, 
                the health plan shall provide access 24 hours a day, 7 
                days a week, to such persons as may be authorized to 
                make any prior authorization determinations respecting 
                coverage of such promptly needed items and services.
                    (B) Deemed approval.--A health plan is deemed to 
                have approved a request for a prior authorization for 
                such promptly needed items and services if such 
                physician or other personnel--
                            (i) has attempted to contact such a person 
                        for authorization--
                                    (I) to provide an appropriate 
                                referral for the items and services, or
                                    (II) to provide the items and 
                                services to the enrollee,
                        and access to the person has not been provided 
                        (as required under subparagraph (A)), or
                            (ii) has requested such authorization from 
                        such a person and the person has not denied the 
                        authorization within 30 minutes after the time 
                        the request is made.
            (2) Referral by physician to hospital emergency department 
        deemed prior authorization.--If a physician (or, in the case of 
        a managed care plan, a participating physician or other person 
        authorized to make prior authorization determinations for the 
        plan) refers an enrollee to a hospital emergency department for 
        evaluation or treatment, a request for prior authorization of 
        the items and services reasonably furnished the enrollee 
        pursuant to such referral shall be deemed to have been made and 
        approved.
            (3) Effect of approval.--
                    (A) In general.--Approval of a request for a prior 
                authorization determination (including a deemed 
                approval under paragraph (1) or (2)) shall be treated 
                as approval of any health care items and services 
                required to treat the medical condition identified 
                pursuant to a screening evaluation referred to in 
                paragraph (1)(A).
                    (B) Payment.--A health plan may not subsequently 
                deny or reduce payment for an item or service furnished 
                pursuant to such an approval unless the approval was 
                based on information about the medical condition of an 
                enrollee that was fraudulent.
    (d) Encouraging Appropriate Use of 911 Emergency Telephone 
Number.--A health plan--
            (1) shall include, in any educational materials the plan 
        makes available to its enrollees on the procedures for 
        obtaining emergency services--
                    (A) a statement that it is appropriate for an 
                enrollee to use the 911 emergency telephone number for 
                an emergency medical condition (as defined in section 
                8(3)), and
                    (B) an explanation of what is an emergency medical 
                condition;
            (2) shall not discourage appropriate use of the 911 
        emergency telephone number by enrollees with emergency medical 
        conditions; and
            (3) shall not deny coverage or payment for an item or 
        service solely on the basis that an enrollee uses the 911 
        emergency telephone number to summon treatment for an emergency 
        medical condition.
SEC. 4. REQUIREMENTS FOR MEDICARE AND MEDICAID MANAGED CARE.

    (a) Medicare.--Subparagraph (B) of section 1876(c)(4) of the Social 
Security Act (42 U.S.C. 1395mm(c)(4)) is amended to read as follows:
            ``(B) meets the requirements of section 3 of the Access to 
        Emergency Medical Care Act of 1995 with respect to enrollees of 
        the plan who are enrolled under this section.''.
    (b) Medicaid.--Title XIX of the Social Security Act (42 U.S.C. 1396 
et seq.) is amended by inserting after section 1908 the following new 
section:

``access to emergency services for individuals enrolled in managed care 
                                  plan

    ``Sec. 1909. (a)  In General.--A state plan may not be approved 
under this title unless the plan requires each managed care plan 
providing (or arranging for the provision of) health care items and 
services to individuals who are eligible for medical assistance and 
enrolled with the managed care plan to comply with the requirements of 
section 3 of the Access to Emergency Medical Care Act of 1995 with 
respect to such individuals.
    ``(b) Waivers Prohibited.--The requirement of subsection (a) may 
not be waived under section 1115 or section 1915(b).
    ``(c) Managed Care Plan.--For purposes of this section, the term 
`managed care plan' means a health plan that provides or arranges for 
the provision health care items and services to enrollees primarily 
through participating physicians and providers.''.

SEC. 5. EFFECT ON STATE LAW.

    (a) Preemption.--Nothing in this Act shall be construed as 
preempting or otherwise superseding any provision of State law unless 
such provision directly conflicts with this Act.
    (b) Consumer Protections.--A provision of State law shall not be 
considered to conflict directly with this Act if the provision provides 
the enrollees of health plans with protections that exceed the 
protections of this Act.

SEC. 6. ENFORCEMENT.

    (a) Civil Money Penalties.--A health plan that violates a 
requirement of section 3 shall be subject to a civil money penalty of 
not more than the greatest of--
            (1) $10,000 for each such violation;
            (2) in the case of a violation of section 3, 3 times the 
        amount that the health plan would have paid for items and 
        services if the plan had not violated such section; or
            (3) in the case of a pattern of repeated and substantial 
        violations, $1,000,000.
    (b) Procedures.--
            (1) In general.--The provisions of section 1128A of the 
        Social Security Act (other than subsections (a) and (b)) shall 
        apply to a civil money penalty under this section in the same 
        manner as such provisions apply with respect to a penalty or 
        proceeding under section 1128A(a) of such Act.
            (2) Corrective action.--In determining the amount or scope 
        of any civil money penalty under this section, the Secretary 
        shall take into account whether a health plan has taken 
        corrective action, such as--
                    (A) payment for items and services for which 
                coverage or payment has been denied in violation of a 
                requirement of section 3, and
                    (B) establishment of policies and procedures to 
                prevent the same type of violation from occurring in 
                the future.
    (c) Indemnification.--The Secretary may, out of any civil money 
penalty collected pursuant to this section, make a payment to an 
enrollee or provider (as appropriate) in an amount equal to the amount 
a health plan would have paid for an item or service (if any) if the 
plan had not denied coverage or payment for such item or service in 
violation of section 3.
    (d) Violations.--For purposes of subsection (a), the Secretary 
shall treat at least the following acts or omissions as violations of 
section 3:
            (1) Coverage of emergency services.--Failure to cover 
        emergency services in violation of section 3(a).
            (2) Failure to provide for payment.--Failure to provide for 
        payment for emergency services in violation of section 
        3(b)(1)(A).
            (3) Improper cost sharing.--Imposition of cost sharing in 
        violation of section 3(b)(1)(B).
            (4) Access to prior authorization.--Failure to provide 
        access to prior authorization determinations in violation of 
        section 3(c)(1)(A).
            (4) Deemed approval.--Failure to pay for services that are 
        deemed to be approved under section 3(c).
            (5) Educational materials.--Failure to include educational 
        materials as required by section 3(d)(1).
            (6) Use of 911.--Discouraging the appropriate use of the 
        911 emergency telephone number or denial of payment in 
        violation of paragraph (2) or (3) of section 3(d).
SEC. 7. REGULATIONS.

    The Secretary shall issue such rules and regulations as may be 
necessary to carry out the provisions of this Act.

SEC. 8. DEFINITIONS.

    For purposes of this Act:
            (1) Cost-sharing.--The term ``cost-sharing'' means any 
        deductible, coinsurance amount, copayment, or other out-of-
        pocket payment that an enrollee is responsible for paying with 
        respect to a health care item or service covered under a health 
        plan.
            (2) Emergency department.--The term ``emergency 
        department'' includes, with respect to a hospital, a trauma 
        center in the hospital if the center--
                    (A) is designated under section 1213 of the Public 
                Health Service Act, or
                    (B) is in a State that has not made such 
                designations and is determined by the Secretary to meet 
                the standards under such section for such designation.
            (3) Emergency medical condition.--The term ``emergency 
        medical condition'' means a medical condition, the onset of 
        which is sudden, that manifests itself by symptoms of 
        sufficient severity, including severe pain, that a prudent 
        layperson, who possesses an average knowledge of health and 
        medicine, could reasonably expect the absence of immediate 
        medical attention to result in--
                    (A) placing the person's health in serious 
                jeopardy,
                    (B) serious impairment to bodily functions, or
                    (C) serious dysfunction of any bodily organ or 
                part.
            (4) Emergency services.--The term ``emergency services'' 
        means--
                    (A) health care items and services furnished in the 
                emergency department of a hospital, and
                    (B) ancillary services routinely available to such 
                department,
        to the extent they are required to evaluate and treat an 
        emergency medical condition (as defined in paragraph (3)) until 
        the condition is stabilized.
            (5) Enrollee.--The term ``enrollee'' means, with respect to 
        a health plan, an individual enrolled with the health plan.
            (6) Health plan.--
                    (A) In general.--The term ``health plan'' refers to 
                any plan or arrangement (other than a plan or 
                arrangement described in subparagraph (B)) that 
                provides, or pays the cost of, health benefits, whether 
                through insurance, reimbursement, or otherwise.
                    (B) Exception.--A plan or arrangement is described 
                in this subparagraph if it is:
                            (i) Coverage only for accidental death or 
                        dismemberment.
                            (ii) Coverage providing wages or payments 
                        in lieu of wages for any period during which 
                        the employee is absent from work on account of 
                        sickness or injury.
                            (iii) A Medicare supplemental policy (as 
                        defined in section 1882(g)(1) of the Social 
                        Security Act).
                            (iv) Coverage issued as a supplement to 
                        liability insurance.
                            (v) Worker's compensation or similar 
                        insurance.
                            (vi) Automobile medical-payment insurance.
                            (vii) Coverage for a specified disease or 
                        illness.
                            (viii) A long-term care policy.
                            (ix) A Federally-funded health care program 
                        (except when such program contracts with a 
                        health plan to provide items and services to 
                        individuals eligible for benefits under the 
                        program).
            (7) Managed care plan.--The term ``managed care plan'' 
        means a health plan that provides or arranges for the provision 
        of health care items and services to enrollees primarily 
        through participating physicians and providers.
            (8) Participating.--The term ``participating'' means, with 
        respect to a physician or provider, a physician or provider 
        that furnishes health care items and services to enrollees of 
        managed care plan under an agreement with the plan.
            (9) Prior authorization determination.--The term ``prior 
        authorization determination'' means, with respect to health 
        care items and services for which coverage may be provided 
        under a health plan, a determination, before the provision of 
        the items and services and as a condition of coverage of the 
        items and services under the plan, that coverage will be 
        provided for the items and services under the plan.
            (10) Secretary.--The term ``Secretary'' means the Secretary 
        of Health and Human Services.
            (11) Stabilized.--The term ``stabilized'' means, with 
        respect to an emergency medical condition, that no material 
        deterioration of the condition is likely, within reasonable 
        medical probability, to result or occur before an individual 
        can be transferred in compliance with the requirements of 
        section 1867 of the Social Security Act.
            (12) 911 emergency telephone number.--The term ``911 
        emergency telephone number'' includes, in the case of a 
        geographic area where 911 is not in use for emergencies, such 
        other telephone number as is in use for emergencies.

SEC. 9. EFFECTIVE DATES.

    (a) In General.--This Act and the amendments made by this Act shall 
become effective on the earlier of--
            (1) 30 days after the date the Secretary issues regulations 
        pursuant to subsection (c), or
            (2) 210 days after the date of the enactment of this Act 
        (without regard to whether such regulations have been issued by 
        such date).
    (b) Application.--The provisions of section 3 (other than 
paragraphs (1) and (2) of subsection (d)) shall apply to items and 
services furnished on or after the effective date described in 
subsection (a).
    (c) Deadline for Regulations.--The Secretary shall issue 
regulations to implement this Act and the amendments made by this Act 
not later than 6 months after the date of the enactment of this Act. 
Such regulations may take effect on a final basis at the time of 
publication, subject to revision based on subsequent public comment.

SEC. 10. REPORT ON APPLICATION TO PLANS INCLUDING MEDICAL SAVINGS 
              ACCOUNTS.

    (a) Study.--The Secretary shall provide for a study of the 
application of this Act in the case of health plans composed of a high-
deductible, catastrophic health insurance policy with a medical savings 
account. In particular, the study shall evaluate the feasibility and 
desirability of requiring the application of amounts in such an account 
toward costs in providing emergency services and in providing promptly 
needed items and services identified in connection with the provision 
of emergency services.
    (b) Report.--The Secretary shall submit to Congress a report on 
such study not later than 18 months after the date of the enactment of 
this Act.
                                 <all>
S 1233 IS----2