June 10, 2020

States Assess OON Billing and Medical Whistleblower Legislation

Georgia and Louisiana state legislatures will hold hearings on out-of-network billing legislation. New Jersey’s assembly and senate introduced a bill protecting healthcare professionals from employer retaliation during the COVID-19 pandemic.

Out-Of-Network Billing

In Georgia, HB 888 is scheduled for a hearing before the Senate Health and Human Services Committee. The bill would require providers to collect no more than their enrollee’s deductible or other cost-sharing amount, as determined by the enrollee’s health insurance policy for emergency medical services performed by an out-of-network provider. The carrier would pay the provider the greater of:

  • The verifiable contracted amount paid by all carriers for similar services
  • The most recent verifiable amount agreed to by the carrier and out-of-network provider for the services; or
  • A higher amount as the carrier deems appropriate.

The provider or facility may request arbitration with the insurance commissioner when the out-of-network provider concludes that payment from the carrier is not sufficient.

In Louisiana, SB 7a is scheduled for a hearing before the Senate Insurance Committee. The bill would require carriers to ensure that out-of-network costs for emergency services would not be greater than the in-network rates for enrollees. The amount billed would not exceed 120 percent of the usual and customary cost, defined as the 80th percentile of all charges for the particular healthcare service performed by a provider in the same specialty and provided in the same geographical area as reported in a benchmarking database maintained by a nonprofit organization specified by the insurance commissioner.

In the event of a payment dispute, payment for the dispute resolution process shall be the responsibility of the nonparticipating physician when the independent dispute resolution entity determines the health insurance issuer's payment is reasonable. Payment for the dispute resolution process shall be the responsibility of the carrier when the independent dispute resolution entity determines the nonparticipating physician's fee is reasonable. The carrier and the nonparticipating physician would evenly divide and share the prorated cost for the dispute resolution process when a good faith negotiation directed by the independent dispute resolution entity results in a settlement between the carrier and nonparticipating physician.

Physician Whistleblower Protection Bill

In New Jersey, SB 2509 was introduced and referred to the Senate Labor Committee. The bill would provide whistleblower protections to healthcare professionals during the pendency of Executive Order 103 of 2020 or any subsequent executive order issued in response to the COVID-19 pandemic.

Specifically, the bill would prohibit an employer from taking any retaliatory action against a healthcare professional who speaks out against an employer's business practice that the healthcare professional reasonably believes violates a law, rule or regulation promulgated pursuant to law, or executive order, including conditions that violate health and safety standards, insufficient measures to alleviate exposures to communicable disease or other health or safety hazards, or improper quality of patient care. An employer would also be prohibited from taking any retaliatory action against a healthcare professional who refuses to participate in any activity, policy or practice that the healthcare professional reasonably believes:

  • Is in violation of a law, rule or regulation promulgated pursuant to law, or executive order, including conditions that violate health and safety standards, insufficient measures to alleviate exposures to communicable disease or other health or safety hazards, or improper quality of patient care; or
  • Is incompatible with a clear mandate of public policy concerning the public health, safety or welfare, or protection of the environment.

A companion bill, AB 4169 was introduced and referred to the Assembly Committee on Labor.