Senate Bill 1638

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    Florida Senate - 1998                                  SB 1638

    By Senator Campbell





    33-336A-98

  1                      A bill to be entitled

  2         An act relating to health care; amending ss.

  3         408.706, 627.419, F.S.; creating s. 641.3151,

  4         F.S.; deleting provisions governing recruitment

  5         and retention of health care providers in a

  6         community health purchasing alliance district;

  7         providing free choice to subscribers to certain

  8         health care plans, and to persons covered under

  9         certain health insurance policies or contracts,

10         in the selection of specified health care

11         providers; prohibiting coercion of provider

12         selection; specifying conditions under which

13         any health care provider must be permitted to

14         provide services under a health care plan or

15         health insurance policy or contract; amending

16         s. 627.6577, F.S.; creating ss. 636.0165,

17         641.3155, F.S.; providing for freedom of choice

18         for dental patients; providing limitations;

19         providing for civil penalties; providing

20         applicability;  creating the "Access to

21         Emergency Medical Services Act"; providing

22         findings and purpose; requiring a health plan

23         that provides coverage for emergency services

24         to cover emergency services furnished to an

25         enrollee under specified circumstances;

26         requiring the health plan to promptly pay for

27         services; prohibiting a health plan from

28         imposing certain types of cost-sharing;

29         providing that a health plan may impose a

30         reasonable copayment; providing requirements

31         for a health plan with respect to providing

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  1         prior authorization; specifying circumstances

  2         under which a health plan is deemed to have

  3         approved a request for prior authorization for

  4         certain services; prohibiting a health plan

  5         from subsequently denying or reducing payment

  6         for items or services; requiring that a health

  7         plan include certain information in educational

  8         materials; providing civil penalties; requiring

  9         that the Director of Health Care Administration

10         take certain factors into consideration in

11         imposing a civil penalty; requiring the Agency

12         for Health Care Administration to adopt rules;

13         providing definitions; repealing s. 641.513,

14         F.S., relating to requirements for providing

15         emergency services and care; providing an

16         effective date.

17

18  Be It Enacted by the Legislature of the State of Florida:

19

20         Section 1.  Subsection (11) of section 408.706, Florida

21  Statutes, is amended to read:

22         408.706  Community health purchasing alliances;

23  accountable health partnerships.--

24         (11)(a)  Notwithstanding any other provision of law to

25  the contrary, any subscriber to a health plan offered by or

26  through a health maintenance organization, managed care

27  organization, prepaid health plan, or accountable health

28  partnership is entitled at all times to free, full, and

29  absolute choice in the selection of a provider or facility

30  licensed or permitted under chapter 458, chapter 459, chapter

31  460, chapter 461, chapter 463, chapter 465, or chapter 466.

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  1  It is expressly forbidden for any health plan to contain any

  2  provision that would require or coerce a subscriber to the

  3  plan to use any provider other than the provider selected by

  4  the subscriber.  Health maintenance organizations, managed

  5  care provider organizations, prepaid health plans, and

  6  accountable health partnerships must allow any health care

  7  provider to participate as a service provider under a health

  8  plan offered by the health maintenance organization, managed

  9  care organization, prepaid health plan, or accountable health

10  partnership, if the health care provider agrees to:

11         1.  Accept the reimbursement rates negotiated by the

12  health maintenance organization, managed care provider

13  organization, prepaid health plan, or accountable health

14  partnership with other health care providers that provide the

15  same service under the health plan; and

16         2.  Comply with all guidelines relating to quality of

17  care and utilization criteria which must be met by other

18  employee or nonemployee providers.

19         (b)  A health maintenance organization, managed care

20  provider organization, prepaid health plan, or accountable

21  health partnership that violates paragraph (a) is subject to a

22  civil fine in the amount of:

23         1.  Up to $25,000 for each violation, or

24         2.  If the Director of the Agency for Health Care

25  Administration determines that the entity has engaged in a

26  pattern of violations of paragraph (a), up to $100,000 for

27  each violation. The ability to recruit and retain alliance

28  district health care providers in its provider network. For

29  provider networks initially formed in an alliance district

30  after July 1, 1993, an accountable health partnership shall

31  make offers as to provider participation in its provider

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  1  network to relevant alliance district health care providers

  2  for at least 60 percent of the available provider positions. A

  3  provider who is made an offer may participate in an

  4  accountable health partnership as long as the provider abides

  5  by the terms and conditions of the provider network contract,

  6  provides services at a rate or price equal to the rate or

  7  price negotiated by the accountable health partnership, and

  8  meets all of the accountable health partnership's

  9  qualifications for participation in its provider networks

10  including, but not limited to, network adequacy criteria. For

11  purposes of this subsection, "alliance district health care

12  provider" means a health care provider who is licensed under

13  chapter 458, chapter 459, chapter 460, chapter 461, chapter

14  464, or chapter 465 who has practiced in Florida for more than

15  1 year within the alliance district served by the accountable

16  health partnership.

17         Section 2.  Subsection (9) is added to section 627.419,

18  Florida Statutes, to read:

19         627.419  Construction of policies.--

20         (9)(a)  Notwithstanding any other provision of law to

21  the contrary, any person covered under any health insurance

22  policy, health care services plan, or other contract that

23  provides for payment for medical expense benefits or

24  procedures is entitled at all times to free, full, and

25  absolute choice in the selection of a provider or facility

26  licensed or permitted under chapter 458, chapter 459, chapter

27  460, chapter 461, chapter 463, chapter 465, or chapter 466.

28  It is expressly forbidden for any health plan to contain any

29  provision that would require or coerce a person covered by the

30  plan to use any provider other than the provider selected by

31  the subscriber.  Any health insurance policy, health care

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  1  services plan, or other contract that provides for payment for

  2  medical expense benefits or procedures must allow any health

  3  care provider to participate as a service provider under a

  4  health plan offered by the health insurance policy, health

  5  care services plan, or other contract that provides for

  6  payment for medical expense benefits or procedures, if the

  7  health care provider agrees to:

  8         1.  Accept the reimbursement rates negotiated by the

  9  health insurance policy, health care services plan, or other

10  contract that provides for payment for medical expense

11  benefits or procedures with other health care providers that

12  provide the same service under the health plan; and

13         2.  Comply with all guidelines relating to quality of

14  care and utilization criteria which must be met by other

15  providers with whom the health insurance policy, health care

16  services plan, or other contract that provides for payment for

17  medical expense benefits or procedures has contractual

18  arrangements for those services.

19         (b)  The provider of any health insurance policy,

20  health care services plan, or other contract that violates

21  paragraph (a) is subject to a civil fine in the amount of:

22         1.  Up to $25,000 for each violation, or

23         2.  If the Insurance Commissioner determines that the

24  provider has engaged in a pattern of violations of paragraph

25  (a), up to $100,000 for each violation.

26         Section 3.  Section 641.3151, Florida Statutes, is

27  created to read:

28         641.3151  Subscriber freedom of choice.--

29         (1)  Notwithstanding any other provision of law to the

30  contrary, any subscriber to a health plan offered by or

31  through a health maintenance organization or managed care

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  1  organization is entitled at all times to free, full, and

  2  absolute choice in the selection of a provider or facility

  3  licensed or permitted under chapter 458, chapter 459, chapter

  4  460, chapter 461, chapter 463, chapter 465, or chapter 466. It

  5  is expressly forbidden for any health plan to contain any

  6  provision that would require or coerce a subscriber to the

  7  plan to use any provider other than the provider selected by

  8  the subscriber.  Health maintenance organizations and managed

  9  care provider organizations must allow any health care

10  provider to participate as a service provider under a health

11  plan offered by the health maintenance organization or managed

12  care organization, if the health care provider agrees to:

13         (a)  Accept the reimbursement rates negotiated by the

14  health maintenance organization or managed care provider

15  organization with other health care providers that provide the

16  same service under the health plan; and

17         (b)  Comply with all guidelines relating to quality of

18  care and utilization criteria which must be met by other

19  employee or nonemployee providers.

20         Section 4.  Section 627.6577, Florida Statutes, is

21  amended to read:

22         (Substantial rewording of section.  See

23         s. 627.6577, F.S., for present text.)

24         627.6577  Freedom of choice for dental patients.--

25         (1)  A dental insurance policy that is delivered,

26  renewed, or issued for delivery, or otherwise contracted for

27  in this state by a health insurer or dental service plan

28  corporation may not:

29         (a)  Prohibit any person who is a party to or

30  beneficiary of the policy from selecting the dentist of his or

31  her choice, nor interfere with such selection.

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  1         (b)  Deny any dentist the right to participate as a

  2  contracting provider for the policy or plan if the dentist

  3  agrees to comply with the terms set forth in the insurer's

  4  standard provider document and to accept the corresponding

  5  reimbursement rates applicable to the provider document.

  6         (2)  An insurer dental service plan corporation must

  7  make payment or reimbursement to a noncontracting provider

  8  dentist in the same amounts and according to the same

  9  procedures as the insurer makes payment or reimbursement to a

10  contracting dentist for the same services.

11         (3)  A health insurer or dental service plan

12  corporation that violates subsection (1) or subsection (2) is

13  subject to a civil fine in the amount of:

14         (a)  Up to $25,000 for each violation, or

15         (b)  If the Insurance Commissioner determines that the

16  provider has engaged in a pattern of violations of subsection

17  (1) or subsection (2), up to $100,000 for each violation.

18         Section 5.  Section 636.0165, Florida Statutes, is

19  created to read:

20         636.0165  Freedom of choice for dental patients.--

21         (1)  A dental insurance policy that is delivered,

22  renewed, or issued for delivery, or otherwise contracted for

23  in this state by a health insurer or dental service plan

24  corporation may not:

25         (a)  Prohibit any person who is a party to or

26  beneficiary of such policy from selecting the dentist of his

27  or her choice, nor interfere with such selection.

28         (b)  Deny any dentist the right to participate as a

29  contracting provider for such policy or plan if the dentist

30  agrees to comply with the terms set forth in the insurer's

31  standard provider document and agrees to accept the

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  1  corresponding reimbursement rates applicable to the provider

  2  document.

  3         (2)  A prepaid limited health services organization

  4  must make payment or reimbursement to a noncontracting

  5  provider dentist in the same amounts and according to the same

  6  procedures as the insurer makes payment or reimbursement to a

  7  contracting dentist for the same services.

  8         (3)  A health insurer or dental service plan

  9  corporation that violates subsection (1) or subsection (2) is

10  subject to a civil fine in the amount of:

11         (a)  Up to $25,000 for each violation, or

12         (b)  If the Insurance Commissioner determines that the

13  provider has engaged in a pattern of violations of subsection

14  (1) or subsection (2), up to $100,000 for each violation.

15         Section 6.  Section 641.3155, Florida Statutes, is

16  created to read:

17         641.3155  Freedom of choice for dental patients.--

18         (1)  A dental insurance policy that is delivered,

19  renewed, or issued for delivery, or otherwise contracted for

20  in this state by a health insurer or dental service plan

21  corporation may not:

22         (a)  Prohibit any person who is a party to or

23  beneficiary of such policy from selecting the dentist of his

24  or her choice, nor interfere with such selection.

25         (b)  Deny any dentist the right to participate as a

26  contracting provider for the policy or plan if the dentist

27  agrees to comply with the terms set forth in the insurer's

28  standard provider document and to accept the corresponding

29  reimbursement rates applicable to the provider document.

30         (2)  A health maintenance organization or managed care

31  organization must make payment or reimbursement to a

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  1  noncontracting provider dentist in the same amounts and

  2  according to the same procedures as the insurer makes payment

  3  or reimbursement to a contracting dentist for the same

  4  services.

  5         Section 7.  This act does not apply to any health

  6  insurance policy that is in force before the effective date of

  7  this act but does apply to each such policy commencing with

  8  its next renewal period immediately following the effective

  9  date of this act.

10         Section 8.  (1)  SHORT TITLE.--This section may be

11  cited as the "Access to Emergency Medical Services Act."

12         (2)  FINDINGS; PURPOSE.--

13         (a)1.  State law requires emergency physicians and

14  other providers to evaluate, treat, and stabilize any

15  individual who seeks treatment in a hospital emergency

16  department.

17         2.  An emergency physician is specifically prohibited

18  from delaying any treatment needed to evaluate or stabilize an

19  individual in order to determine the status of the

20  individual's health insurance.

21         3.  Many health plans routinely deny payment for

22  required emergency services furnished to their enrollees,

23  basing such denials on:

24         a.  Failure to obtain prior approval for such services

25  from the plan; or

26         b.  An after-the-fact determination that the medical

27  condition identified through the required evaluation was not

28  an emergency medical condition.

29         4.  Such denials by health plans impose significant

30  financial burdens on:

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  1         a.  Enrollees who, based on symptoms that reasonably

  2  suggest a medical emergency, prudently seek care in a hospital

  3  emergency department; and

  4         b.  Emergency physicians, the hospital emergency

  5  departments, and others who furnish emergency services to

  6  enrollees.

  7         5.  These burdens discourage enrollees from seeking

  8  emergency care in cases where it is appropriate and,

  9  ultimately, threaten the financial livelihood of hospital

10  emergency departments that provide emergency services to the

11  entire population, including beneficiaries of the Medicare and

12  Medicaid programs and of other health care programs.

13         6.  Health plans have engaged in practices that

14  discourage the appropriate use of the 911 emergency telephone

15  number and that adversely impact the health of enrollees.

16         (b)  The purpose of this section is to:

17         1.  Require health plans to cover and pay for their

18  fair share for emergency services that hospital emergency

19  departments are required to provide.

20         2.  Protect health plan enrollees by establishing a

21  uniform definition of the term "emergency medical condition,"

22  which is based on the average knowledge of a prudent

23  layperson.

24         3.  Prohibit health plans from requiring prior approval

25  for required emergency services.

26         4.  Assure that health plans promote the appropriate

27  use of the 911 emergency telephone number.

28         (3)  EQUITABLE HEALTH PLAN COVERAGE WITH RESPECT TO

29  EMERGENCY SERVICES.--

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  1         (a)  A health plan that provides any coverage with

  2  respect to emergency services must cover emergency services

  3  furnished to an enrollee of the plan without regard to:

  4         1.  Whether or not the provider that furnishes the

  5  emergency services has a contractual or other arrangement with

  6  the plan for the provision of such services to the enrollee;

  7  and

  8         2.  Prior authorization.

  9         (b)1.  A health plan that provides any coverage with

10  respect to emergency services:

11         a.  Shall determine and make prompt payment in a

12  reasonable and appropriate amount for such services.

13         b.  Except as provided in subparagraph 2., may not

14  impose cost-sharing for services furnished in a hospital

15  emergency department which is calculated in a manner that

16  imposes a greater percentage of cost-sharing with respect to

17  such services when compared to comparable services furnished

18  in other settings.

19         2.  A health plan may impose a reasonable copayment in

20  lieu of coinsurance to deter inappropriate use of services of

21  a hospital emergency department.

22         (c)1.  If an enrollee of a health plan receives

23  emergency services from an emergency department pursuant to a

24  screening evaluation conducted by a treating physician or

25  other emergency department personnel and, pursuant to the

26  evaluation by such physician or personnel, identifies items

27  and services, other than emergency services, promptly needed

28  by the enrollee, the health plan shall provide access 24 hours

29  a day, 7 days a week, to such persons as are authorized to

30  make any prior authorization determinations with respect to

31  coverage of such promptly needed items and services.

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  1         2.  A health plan is deemed to have approved a request

  2  for a prior authorization for such promptly needed items and

  3  services if the physician or other personnel:

  4         a.  Has attempted to contact such a person for

  5  authorization to provide:

  6         (I)  An appropriate referral for the items and

  7  services; or

  8         (II)  The items and services or access to the person

  9  has not been provided, as required under subparagraph 1.; or

10         b.  Has requested such authorization and the

11  authorization is not denied within 30 minutes after the time

12  the request was made.

13         3.  If a physician or, in the case of a managed care

14  plan, a participating physician or other person authorized to

15  make prior authorization determinations for the plan, refers

16  an enrollee to a hospital emergency department for evaluation

17  or treatment, a request for prior authorization of the items

18  and services reasonably furnished the enrollee pursuant to

19  such referral shall be deemed to have been made and approved.

20         4.a.  Approval of a request for a prior authorization

21  determination, including a deemed approval under subparagraph

22  2. or subparagraph 3., shall be treated as approval of any

23  health care items and services required to treat the medical

24  condition identified pursuant to a screening evaluation under

25  subparagraph 1.

26         b.  A health plan may not subsequently deny or reduce

27  payment for an item or service furnished pursuant to such an

28  approval unless the approval was based on fraudulent

29  information about the medical condition of an enrollee.

30         (d)  A health plan:

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  1         1.  Must include, in any educational materials the plan

  2  makes available to its enrollees on the procedures for

  3  obtaining emergency services:

  4         a.  A statement that it is appropriate for an enrollee

  5  to use the 911 emergency telephone number for an emergency

  6  medical condition; and

  7         b.  An explanation of what constitutes an emergency

  8  medical condition.

  9         2.  May not discourage appropriate use of the 911

10  emergency telephone number by an enrollee with an emergency

11  medical condition.

12         3.  May not deny coverage or payment for an item or

13  service solely on the basis that an enrollee used the 911

14  emergency telephone number to summon treatment for an

15  emergency medical condition.

16         (4)  ENFORCEMENT.--

17         (a)  A health plan that violates a requirement of

18  subsection (3) is subject to a civil penalty of not more than

19  the greater of:

20         1.  Ten thousand dollars for each such violation.

21         2.  Three times the amount that the health plan would

22  have paid for items and services if the plan had not violated

23  subsection (3).

24         3.  In the case of a pattern of repeated and

25  substantial violations, $1 million.

26         (b)  In determining the amount of any civil penalty

27  under this section, the Director of Health Care Administration

28  shall take into account whether a health plan has taken

29  corrective action, such as:

30         1.  Paying for items and services for which coverage or

31  payment has been denied in violation of subsection (3); or

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  1         2.  Establishing policies and procedures to prevent the

  2  same type of violation from occurring in the future.

  3         (c)  The Director of Health Care Administration may,

  4  out of any civil penalty collected under this section, pay an

  5  enrollee or provider, as appropriate, an amount equal to the

  6  amount the health plan would have paid for an item or service,

  7  if any, if the plan had not denied coverage or payment for

  8  such item or service in violation of subsection (3).

  9         (d)  For purposes of paragraph (a), the Director of

10  Health Care Administration shall consider at least the

11  following acts or omissions as violations of subsection (3).

12         1.  Failing to cover emergency services in violation of

13  paragraph (3)(a).

14         2.  Failing to provide for payment for emergency

15  services in violation of sub-subparagraph (3)(b)1.a.

16         3.  Imposing cost-sharing in violation of

17  sub-subparagraph (3)(b)1.b.

18         4.  Failing to provide access to prior authorization

19  determinations in violation of subparagraph (3)(c)1.

20         5.  Failing to pay for services that are deemed to be

21  approved under subparagraph (3)(c)2.

22         6.  Failing to include educational materials as

23  required by subparagraph (3)(d)1.

24         7.  Discouraging the appropriate use of the 911

25  emergency telephone number, or denying payment if the enrollee

26  uses the 911 emergency telephone number, in violation of

27  subparagraph (3)(d)2., or subparagraph (3)(d)3.

28         (5)  RULES.--The Agency for Health Care Administration

29  shall adopt rules to administer this section.

30         (6)  DEFINITIONS.--As used in this section, the term:

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  1         (a)  "Cost-sharing" means any deductible, coinsurance

  2  amount, copayment, or other out-of-pocket payment that an

  3  enrollee is responsible for paying with respect to a health

  4  care item or service covered under a health plan.

  5         (b)  "Emergency department" includes a trauma center.

  6         (c)  "Emergency medical condition" means a medical

  7  condition, the onset of which is sudden, which manifests

  8  itself by symptoms of sufficient severity, including severe

  9  pain, which a prudent layperson, who possesses an average

10  knowledge of health and medicine, could reasonably expect that

11  the absence of immediate medical attention would result in:

12         1.  Placing the person's health in serious jeopardy.

13         2.  Serious impairment to bodily functions.

14         3.  Serious dysfunction of any bodily organ or part.

15         (d)  "Emergency services" means:

16         1.  Health care items and services furnished in the

17  emergency department of a hospital; and

18         2.  Ancillary services routinely available to such

19  department,

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21  to the extent that the items and services are required to

22  evaluate and treat an emergency medical condition until the

23  condition is stabilized.

24         (e)  "Enrollee" means an individual enrolled with a

25  health plan.

26         (f)  "Health plan" means any plan or arrangement that

27  provides, or pays the cost of, health benefits, whether

28  through insurance, reimbursement, or otherwise. The term does

29  not include:

30         1.  Coverage only for accidental death or

31  dismemberment.

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  1         2.  Coverage that provides wages or payments in lieu of

  2  wages for any period during which the employee is absent from

  3  work due to sickness or injury.

  4         3.  A Medicare supplemental policy, as defined in

  5  section 1882(g)(1) of the Social Security Act.

  6         4.  Coverage issued as a supplement to liability

  7  insurance.

  8         5.  Workers' compensation or similar insurance.

  9         6.  Automobile medical-payment insurance.

10         7.  Coverage for a specified disease or illness.

11         8.  A long-term care policy.

12         9.  A federally funded health care program, unless such

13  a program contracts with a health plan to provide items and

14  services to individuals eligible for benefits under the

15  program.

16         (g)  "Managed care plan" means a health plan that

17  provides or arranges for the provision of health care items

18  and services to enrollees primarily through participating

19  physicians and providers.

20         (h)  "Participating" means, with respect to a physician

21  or provider, a physician or provider that furnishes health

22  care items and services to enrollees of a managed care plan

23  under an agreement with the plan.

24         (i)  "Prior authorization determination" means a

25  determination, before the provision of the items and services

26  and as a condition of coverage of the items and services under

27  the plan, that coverage will be provided for the items and

28  services under the plan.

29         (j)  "Stabilized" means that no material deterioration

30  of an emergency medical condition is likely, within reasonable

31  medical probability, to result or occur before an individual

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  1  can be transferred in compliance with the requirements of

  2  section 1867 of the Social Security Act.

  3         (k)  "911 emergency telephone number" includes, in the

  4  case of a geographic area where 911 is not in use for

  5  emergencies, any other telephone number that is in use for

  6  emergencies.

  7         Section 9.  Section 641.513, Florida Statutes, as

  8  created by section 33 of chapter 96-199, Laws of Florida, and

  9  section 9 of chapter 96-223, Laws of Florida, is repealed.

10         Section 10.  This act shall take effect October 1,

11  1998.

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  1            *****************************************

  2                          SENATE SUMMARY

  3    Repeals current provisions governing the recruitment and
      retention of health care providers in a community health
  4    purchasing alliance district.  Provides that subscribers
      to a health plan offered through a health maintenance
  5    organization, managed care organization, prepaid health
      plan, or accountable health partnership, and persons
  6    covered under a health insurance policy or contract, are
      entitled to free, full, and absolute choice of providers
  7    offering physician, chiropractic, podiatry, optometry,
      pharmacy, or dental services, and prohibits coercion or
  8    coercive requirements relating to subscriber selection.
      Provides that such service providers must be permitted to
  9    offer services under the health plan of a health
      maintenance organization, managed care organization,
10    prepaid health plan, or accountable health partnership,
      or under the health insurance policy or contract, if they
11    agree to the negotiated reimbursement rates and comply
      with certain guidelines relating to quality of care and
12    utilization. Prohibits dental insurance policies from
      restricting a subscriber's choice or refusing payment to
13    noncontracting dental service providers who meet certain
      requirements. Provides for civil fines for violations.
14

15    Creates the "Access to Emergency Medical Services Act."
      Requires that if a health plan provides coverage for
16    emergency services, the health plan must pay for
      emergency services without regard to whether the health
17    plan has a contract with the provider that furnished the
      emergency services and without regard to prior
18    authorization. Authorizes a health plan to impose a
      copayment for emergency services. Requires that a health
19    plan inform enrollees of the appropriate use of the 911
      emergency telephone number and what constitutes an
20    emergency medical condition. Provides for civil penalties
      to be imposed for violation of the act. Requires the
21    Agency for Health Care Administration to adopt rules to
      administer the act.
22

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