July 06, 2017

Scope of Practice and Surprise Billing Draw State Legislative Attention

In recent legislative actions, six states considered legislation mandating cost estimates for patients in advance of the procedure and modified reimbursement rates for out-of-network providers. California, Delaware and Rhode Island considered bills that would expand the scope of practice of physician assistants (PAs), nurse practitioners and physical therapists. Hawaii’s bill would establish professional licensure for “assistant physicians.”



Arizona’s Sen. Andrea Dalessandro introduced SB 1469. The bill would prohibit health care providers from billing enrollees or insurers for services more than 150% of the Medicare reimbursement rate for out-of-network care if the balance from the enrollee’s cost-sharing requirement and insurer’s allowable reimbursement for the services is less than $1,000.


In Colorado, the Senate will hold a second reading of SB 43. It would change the reimbursement rate for out-of-network providers for:

  • 105% to 110% of the insurer’s average in-network rate for that service in the same geographic area; or
  • 60th percentile of the in-network rate instead of the previous median in-network rate for the same service in the same geographic area.

The provider would be reimbursed the greater of the above options.


In Florida, HB 959 would require licensed facilities to provide in writing or electronically a good faith estimate of reasonably anticipated charges by the facility for a patient’s treatment or specific condition. The estimate would be provided to the patient or prospective patient upon scheduling a medical service or upon admission to the facility or before providing elective medical services on an outpatient basis. It would prohibit facilities from charging enrollees more than 110% of the estimate. If the facility determines such charges are warranted, the facility must provide the patient with a written explanation of the excess charges as part of the itemized statement to the patient.

Facilities would also be required to establish an internal process for reviewing and responding to patients’ grievances regarding statement charges. The facility would be required to provide an initial response to a patient grievance within seven business days after the patient formally files a grievance.

The bill passed the House Health Care Appropriations Subcommittee.


In Hawaii, the Health Committee will hold a hearing on HB 1881, which would add a definition of emergency services billing as:

  • When an enrollee receives emergency services from an out-of-network provider, the provider would be prohibited from billing the enrollee, insurer or any other entity any amount in excess of any applicable charges the provider would be entitled to charge a Medicare enrollee who receives such services, including, without limitation, any copayment, coinsurance or deductible that would be owed by a Medicare enrollee to the out-of-network provider for the services;
  • The out-of-network provider would accept payment of the amounts under subsection as payment in full for the emergency services rendered;
  • To the extent that the emergency services are covered under the enrollee's managed care plan, any liability the managed care plan may have for the services shall not exceed the amount the out-of-network provider is entitled to bill under this section;
  • A health care provider or facility shall bill an insurer only for a health intervention service that is a medical necessity. The health care provider or facility shall not bill or otherwise attempt to collect from an enrollee any amount not paid by a health carrier for a health intervention service that is a medical necessity, other than an applicable copayment, coinsurance, or deductible; and
  • An out-of-network provider means a facility, health care provider or health care professional that is not subject to a written agreement with the enrollee's insurer governing the provision of emergency services.

Also in Hawaii, HB 2504 and companion legislation SB 2778, would require health care providers, facilities and hospitals to disclose in writing to patients prior to administering elective services that are not covered under the enrollee’s health care plan the following items:

  • That certain health care facility-based health care providers may be requested to render care to an enrollee during treatment;
  • That the provider may not have contracts with the enrollee’s insurer and therefore considered to be out-of-network providers
    • That the services provided would be out-of-network and the cost may be substantially higher than in-network services;
    • A notification that the covered person may opt to accept and pay the charges for the out-of-network services or elect remedies available under state or federal law; and
    • A statement indicating that the enrollee may obtain a list of in-network providers and request a provider from that list.

Out-of-network providers would be required to disclose to the patient in writing the estimated amount the provider would bill the patient for elective services and obtain consent from the patient at least 24 hours prior to providing the services. If a provider does not obtain a signed consent form, the insurer would reimburse the out-of-network provider the greater of the usual and customary rate for similar services or the Medicare reimbursement amount for a similar service in the general geographic area.

The House version will be discussed at a hearing by the Health Committee.

The Senate bill will be held before a hearing by the Senate Committee on Commerce, Consumer Protection, and Health.


In Indiana, HB 1005 was amended on the House floor and engrossed. It would mandate that providers provide a good faith estimate of the total price a provider anticipates for elective services requested by the patient for whom elective service has been ordered. The provider would be required to provide the estimate within three business days of receiving the request.

The estimate would include:

The total price that the provider facility will impose;
The use of the provider facility to care for the patient before, during and after the elective service;
The services rendered by the staff of the facility;
Medication, supplies, equipment and material items to be provided to or used by the patient while in the facility; and
Fees charged for the services of all practitioners, support staff and other persons who will provide health services.

Charges would include imaging, diagnostic services, therapy and other services expected to be provided to the individual.


In Kansas, the Senate will hold a hearing on SB 282. In the event a patient is recommended, referred to or is under the care of a health care provider for a service for which the charge exceeds the minimum cost and the patient requests an estimate of the charge, the provider would be required to provide the estimate. The bill would require the provider to provide the estimate within 10 business days of the request and include:

For inpatient procedures/treatments: The reasonably anticipated services of providers during and after the procedure and/or treatment, including the anticipated total charge for hospitalization and the numbers of days of the hospital stay;
For outpatient procedures/treatments: The reasonably anticipated total charge; and
For elective procedures/treatments: The reasonably anticipated services of providers during and after the procedure and/or treatment.


In Missouri, the Senate will hold a second reading on SB 944. It would modify the definition of “unanticipated out-of-network care” to include patient referrals or transfers from an in-network provider to an out-of-network provider in life-threatening conditions.

Scope of Practice

California’s Assembly will hold a third reading on AB 890. The bill would expand nurse practitioners’ current scope of practice of interpreting diagnostic procedures to include ordering and performing. The bill would also mandate the Advanced Practice Registered Nursing Board define minimum standards for a nurse practitioner to transition to practice without physician supervision.

In Delaware, HB 169 was referred to the House Policy Analysis and Government Accountability Committee. It would remove the requirement of direct physician supervision of PAs to a collaborative agreement. The physician would not be required to be on-site if the physician is available by some form of electronic communication. PAs would also be permitted to order diagnostic procedures.

In Hawaii, HB 39 would create a new category of professional licensure called assistant physicians. This position would be filled by recent medical school graduates who have passed certain medical exams but have not been placed into a residency program. The assistant physician would work in a collaborative practice with a physician to provide primary care in medically underserved urban or rural areas. The bill passed both the House Health and Intrastate Commerce Committees.

In Rhode Island, HB 7234 would expand physical therapist’s scope of practice to include ordering diagnostic imaging and studies. The bill was referred to the House Health, Education and Welfare Committee.