Amends TCA Title 8; Title 56; Title 63 and Title 68.

EMERGENCY MEDICAL SERVICES This bill requires that an insurer that provides benefits to covered persons with respect to emergency medical services must pay for those emergency medical services without the need for a prior authorization determination and without retrospective payment denial for medically necessary services; regardless of whether the healthcare provider or facility furnishing those services is a participating provider or facility with respect to the services; and in accordance with this bill. If a covered person receives the provision of such services from a nonparticipating emergency medical provider, then the nonparticipating provider must collect or bill no more than the person’s deductible, coinsurance, copayment, or other cost-sharing amount as determined by the person’s policy directly, and the insurer is required under this bill to directly pay the provider the greater of the following: (1) The verifiable contracted amount paid by all eligible insurers subject to this bill for the provision of the same or similar services as determined by the commissioner by rule; (2) The most recent verifiable amount agreed to by the insurer and the nonparticipating emergency medical provider for the provision of the same services during such time as the provider was in-network with the insurer; or (3) A higher amount as the insurer may deem appropriate given the complexity and circumstances of the services provided. This bill further clarifies that an amount that the insurer pays the nonparticipating provider under the provisions above is not required to include any amount of coinsurance, copayment, or deductible owed by the covered person or already paid by the covered person. This bill prohibits a healthcare plan from denying benefits for such services previously rendered based upon a covered person's failure to provide subsequent notification in accordance with plan provisions, where the covered person's medical condition prevented timely notification. For purposes of the covered person's financial responsibilities, this bill requires the healthcare plan to treat such services received by the covered person from a nonparticipating provider or facility as if the services were provided by a participating provider or facility, and must include applying the covered person's cost-sharing for the services toward the covered person's deductible and maximum out-of-pocket limit applicable to services obtained from a participating provider or a participating facility under the healthcare plan. Under this bill, if a covered person receives such services from a nonparticipating facility, then the facility must bill the covered person no more than the covered person's deductible, coinsurance, copayment, or other cost-sharing amount as determined by the person's policy directly. All insurer payments made to providers must accompany notification to the provider from the insurer disclosing whether the healthcare plan is subject to the exclusive jurisdiction of ERISA. NONEMERGENCY MEDICAL SERVICES This bill requires an insurer that provides benefits to covered persons with respect to nonemergency medical services to pay for the services if the services resulted in a surprise bill regardless of whether the healthcare provider furnishing the services is a participating provider with respect to the services. If a covered person receives a surprise bill for the provision of such services from a nonparticipating medical provider, then the provider must collect or bill the covered person no more than the person's deductible, coinsurance, copayment, or other cost-sharing amount as determined by the person's policy directly, and the insurer must directly pay the provider the greater of the following: (1) The verifiable contracted amount paid by all eligible insurers subject to this bill for the provision of the same or similar services as determined by the department by rule; (2) The most recent verifiable amount agreed to by the insurer and the nonparticipating emergency medical provider for the provision of the same services during such time as the provider was in-network with the insurer; or (3) A higher amount as the insurer may deem appropriate given the complexity and circumstances of the services provided, very similar to the corresponding provision regarding the emergency medical services mentioned above. This bill provides that an amount that the insurer pays the nonparticipating provider is not required to include any amount of coinsurance, copayment, or deductible owed by the covered person or already paid by the covered person. For purposes of the covered person's financial responsibilities, the healthcare plan must treat such services received by the covered person from a nonparticipating provider as if the services were provided by a participating provider, and must include applying the covered person's cost-sharing for the services toward the covered person's deductible and maximum out-of-pocket limit applicable to services obtained from a participating provider under the healthcare plan. All insurer payments made to providers must accompany notification to the provider from the insurer disclosing whether the healthcare plan is subject to the exclusive jurisdiction of ERISA. However, these requirements do not affect a covered person's financial responsibilities or a nonparticipating facility's rights with respect to such services received from a nonparticipating facility. FINANCIAL RESPONSIBILITIES This bill does not reduce a covered person's financial responsibilities in the event that the covered person chose to receive nonemergency medical services from an out-of-network provider. Those services are not considered a surprise bill for purposes of this bill. The covered person’s choice to receive such services from an out-of-network provider must be documented through the covered person’s written and oral consent in advance of the provision of the services and occur only after the covered person has been provided with an estimate of the potential charges. If, however, during the provision of such services, a covered person requests that the attending provider refer the covered person to another provider for the immediate provision of additional nonemergency medical services, then the referred provider is exempt from the previously mentioned requirements of the patient’s written consent after an estimate has been provided if the following are satisfied: (1) The referring provider advises the covered person that the referred provider may be a nonparticipating provider and may charge higher fees than a participating provider; (2) The covered person orally and in writing acknowledges being aware that the referred provider may be a nonparticipating provider and may charge higher fees than a participating provider; (3) The written acknowledgment is on a document separate from other documents provided by the referring provider and includes language to be determined by the commissioner by rule; and (4) The referring provider records the satisfaction of the requirements in (1)-(3) in the covered person’s medical file. However, this bill does not reduce a covered person’s financial responsibilities with regard to ground ambulance transportation. APPLICABLILITY This bill applies to all insurers providing a healthcare plan that pays for the provision of healthcare services to covered persons along with healthcare plans and state healthcare plans, but not to ERISA plans. PROHIBITIONS Under this bill, a healthcare plan must not deny or restrict the provision of covered benefits from a participating provider to a covered person solely because the covered person obtained treatment from a nonparticipating provider leading to a balance bill. The insurer must provide notice of such protection in writing to the covered person. For the purposes of this bill, a balance bill refers to the amount that a nonparticipating provider charges for services provided to a covered person and equals the difference between the amount paid or offered by the insurer and the amount of the nonparticipating provider’s bill charge, excluding any amount for coinsurance, copayments, or deductibles due by the covered person. Subject to appropriation, the department of commerce and insurance must provide for the maintenance of an all-payer health claims database that maintains records of insurer payments and tracks the payments by a wide variety of healthcare services and by geographic areas of this state. The appropriation must specifically reference this act. The department must update information in the all-payer health claims database on no less than an annual basis and maintain the information on the department's website. If the appropriation is not made, then the department must update information from other verifiable data as the commissioner must determine appropriate on no less than an annual basis and must maintain the information on the department's website. In addition, a nonparticipating provider is prohibited from reporting to a credit reporting agency a covered person who receives a surprise bill for the receipt of healthcare services from the provider and does not pay the provider any copay, coinsurance, deductible, or other cost-sharing amount beyond what the covered person would pay if the nonparticipating provider had been a participating provider. ARBITRATION If an out-of-network provider or facility concludes that payment received from an insurer is not sufficient given the complexity and circumstances of the services provided, then the provider or facility may initiate a request for arbitration with the commissioner of commerce and insurance. The provider or facility must submit the request within 30 days of receipt of payment for the claim and concurrently provide the insurer with a copy of the request. Under this bill, the commissioner must dismiss a request for arbitration if the disputed claim meets the following criteria: (1) Is related to a healthcare plan that is not regulated by this state; (2) Is the basis for an action pending in state or federal court at the time of the request for arbitration; (3) Is subject to a binding claims resolution process entered into prior to July 1, 2023; (4) Is made against an ERISA healthcare plan; or (5) Is in accord with other circumstances as may be determined by the commissioner by rule. Within 30 days of the insurer's receipt of the request for arbitration, the insurer must submit to the commissioner all data necessary for the commissioner to determine whether the insurer's payment to the provider or facility was in compliance with this act. However, the commissioner is not required to make a determination prior to referring the dispute to a resolution organization for arbitration. Prior to proceeding with arbitration, the commissioner must allow the parties 30 days from the date the commissioner received the request for arbitration to negotiate a settlement. The parties must timely notify the commissioner of the result of the negotiation. If the parties have not notified the commissioner of the result within 30 days of the date that the commissioner received the request for arbitration, then the commissioner must refer the dispute to a resolution organization within five days. SELECTION OF ARBITRATOR Under this bill, upon the commissioner's referral of a dispute to a resolution organization, the parties have five days to select an arbitrator by mutual agreement. If the parties have not notified the resolution organization of their mutual selection before the fifth day, then the resolution organization must select an arbitrator from among its members. A selected arbitrator must be independent of the parties and must not have a personal, professional, or financial conflict with any party to the arbitration. The arbitrator should have experience or knowledge in healthcare billing and reimbursement rates and must not communicate ex parte with either party. The parties have 10 days after the selection of the arbitrator to submit in writing to the resolution organization each party's final offer and each party's argument in support of the offer. The parties' initial arguments are limited to written form and must consist of no more than 20 pages per party. The parties may submit documents in support of their arguments. The arbitrator may require the parties to submit additional written argument and documentation as the arbitrator determines necessary, but the arbitrator may require additional filing no more than once. The additional written argument is limited to no more than 10 pages per party. The arbitrator may set filing times and extend the filing times as appropriate. However, failure of either party to timely submit the supportive documentation described in this section may result in a default against the party failing to make timely submission. PAYMENT AMOUNTS AND DECISION In addition to the procedural requirements above, each party must submit one proposed payment amount to the arbitrator. The arbitrator will pick one of the two amounts submitted and must reveal that amount in the arbitrator's final decision. The arbitrator must not modify the selected amount. In making such a decision, the arbitrator must consider the complexity and circumstances of each case, including the level of training, education, and experience of the relevant physicians or other individuals at the facility who are licensed or otherwise authorized in this state to furnish healthcare services and other factors as determined by the commissioner through rule. The arbitrator must put the final decision in writing and describe the basis for the decision, including citations to documents relied upon. The arbitrator must make the final decision within 30 days of the commissioner's referral. A default or final decision issued by the arbitrator is binding upon the parties and is not appealable through the court system. FEES AND EXPENSES The party whose final offer amount is not selected by the arbitrator must pay the amount of the award, the arbitrator's expenses and fees, and other fees assessed by the resolution organization, directly to the resolution organization. If a party defaults, then the defaulting party must also pay all moneys due directly to the organization. If both parties default, then the parties are each responsible for paying the organization one-half of all amount due. Parties must pay the amount due under this act in full to the resolution organization within 15 days of the arbitrator's final decision. Within three days of the organization's receipt of amount due to the party whose final offer was selected, the organization must distribute the moneys to such party. VIOLATIONS This bill authorizes the commissioner, following the resolution of arbitration, to refer the decision of the arbitrator to the appropriate state agency or the governing entity with governing authority over the provider or facility if the commissioner concludes that a provider or facility has either displayed a pattern of acting in violation of this act or has failed to comply with a lawful order of the commissioner or the arbitrator. The referral must include a description of the violations and the commissioner’s recommendation for enforcement action. The state agency or governing entity must initiate an investigation regarding the referral within 30 days of receiving the referral and must conclude the investigation within 90 days of receiving the referral. LITIGATION This bill clarifies that once a request for arbitration has been filed with the commissioner, the provider, the facility, and the insurer in the dispute are prohibited from filing a lawsuit in court regarding the same out-of-network claim. REPORTS Each resolution organization contracted by the department must report to the department on a quarterly basis the results of all disputes referred to the organization as the number of arbitrations filed, settled, arbitrated, defaulted, or dismissed during the previous calendar year; and whether the arbitrators’ decision was in favor of the insurer or the provider or facility. Thereafter, the commissioner on or after July 1, 2024, and each following July 1, the commissioner is required to provide a written report to the commerce and labor committee of the senate and the insurance committee of the house of representatives; and post the report on the department’s website summarizing the number of arbitrations filed, settled, arbitrated, defaulted, and dismissed during the previous calendar year and a description of whether the arbitration decisions were in favor of the insurer or the provider or facility. NETWORK ADEQUACY Present law requires that each managed health insurance issuer that offers a plan that limits its enrollees' choice of providers must maintain a network that is sufficient in numbers and types of providers to assure that all covered benefits to covered persons will be accessible without unreasonable delay. In the case of emergency services, covered persons must have access to health care services 24 hours per day, seven days per week. Sufficiency must be determined in accordance with the requirements of this section and may be established by reference to network adequacy standards established by the managed health insurance issuer, specifically referring to primary care provider-covered person ratios and geographic accessibility. The network adequacy standards description must be filed with the commissioner and updated annually. This bill removes the provision above and provides, instead, that each managed health insurance issuer must file the network adequacy standards description with the commissioner, review the description for adequacy and compliance with this bill, and update the description annually. In an effort to ensure that consumers within a geographic region have an adequate opportunity to select an in-network provider, including specialty providers and facilities, and to avoid unanticipated out-of-network costs, the network adequacy standards description must include a report for each network hospital that provides the percentage of providers in each of the specialties of emergency medicine, anesthesiology, radiology and radiation oncology, pathology, and hospitalists practicing in the hospital who are in the health benefit plan's network. Present law also provides that in addition to establishing the standards required, the managed health insurance issuer’s network must demonstrate that a comprehensive listing, made available to covered persons and health care providers, of the plan's network participating providers and facilities, and the listing must be supplemented to show additions and deletions, if any exist, at least annually. This bill requires that the comprehensive listing be made available quarterly instead of annually. Present law provides that as part of the information required in the above-mentioned provisions, the managed health insurance issuer must provide any other information requested by the commissioner to determine compliance. This bill specifically adds that a managed health insurance issuer must provide a sufficient number of contracted providers practicing at the same in-network facilities with which the managed health insurance issuer has contracted to reasonably ensure enrollees have complete and comprehensive in-network access for covered services delivered at those in-network facilities. This bill also provides that if the commissioner determines that a managed health insurance issuer has not met the sufficiency standards established above, then the commissioner must require a modification to the network or may institute a corrective action plan to ensure access for enrollees. The commissioner may also take other disciplinary action for violations as permitted in law. However, the commissioner must develop an appeals procedure and forms where an enrollee of the managed health insurance issuer, contractor of a managed health insurance issuer, or a healthcare provider or facility may file a request for review of network adequacy and sufficiency of the managed health insurance issuer network. The department must complete such review within 45 days of submission to the department. RULEMAKING This bill authorizes the commissioner of commerce and insurance to promulgate rules to effectuate this bill. ON APRIL 10, 2023, THE SENATE ADOPTED AMENDMENT #1 AND PASSED SENATE BILL 1345, AS AMENDED. AMENDMENT #1 replaces the Surprise Billing Consumer Protection Act with a requirement that the commissioner of commerce and insurance conduct a study on the implementation of the federal No Surprises Act and its implications for physicians and healthcare facilities in Tennessee. The commissioner must deliver a copy of a report on the results of the study to the chair of the commerce and labor committee of the senate, the chair of the insurance committee of the house of representatives, and the legislative librarian no later than November 1, 2023. This amendment revises the provisions of this bill described in the Bill Summary under NETWORK ADEQUACY to require each managed health insurance issuer to: (1) File with the commissioner, review, and annually update a network adequacy standards description. The network adequacy standards description must include a report for each network hospital that provides the percentage of providers in each of the specialties of emergency medicine, anesthesiology, radiology, radiation oncology, pathology, and hospitalists practicing in the hospital who are in the health benefit plan's network; and (2) Report to the commissioner a material change to an approved network plan at least 15 days before such change. This amendment defines "material change" to mean a significant reduction in the number of providers available in a network plan. This amendment increases from 45 days to 90 days the time within which the department will be required to complete a review of network adequacy and sufficiency. This amendment changes this bill's effective date from July 1, 2023, for all purposes, to the following: (1) July 1, 2023, for rulemaking and carrying out administrative duties necessary to effectuate this bill; (2) Upon becoming a law,