; and (D) shall apply the deductible or out-of-pocket maximum, if any, that would apply if such services were furnished by a participating provider or a participating facility. (2) Criteria described For purposes of paragraph (1), the criteria described in this paragraph, with respect to an item or service furnished to a participant or beneficiary of a health plan by a nonparticipating provider or a nonparticipating facility, are the following: (A) The participant or beneficiary received a notification under subsection (h) with respect to such item and service to be furnished and such notification provided information that the provider was a participating provider or facility was a participating facility, with respect to the plan for furnishing such item or service. (B) A notification was not provided, in accordance with subsection (h), to the participant or beneficiary and the participant or beneficiary requested through the response protocol of the plan under subsection (f)(3) information on whether the provider was a participating provider or facility was a participating facility with respect to the plan for furnishing such item or service and was informed through such protocol that the provider was such a participating provider or facility was such a participating facility. . 7. Determination through open negotiation and mediation of out-of-network rates to be paid by health plans (a) PHSA amendment Section 2719A of the Public Health Service Act ( 42 U.S.C. 300gg–19a ), as amended by sections 2(a), 3(a), 5(a), and 6(a), is further amended by inserting before subsection (k) the following new subsection: (j) Determination of out-of-Network rates To be paid by health plans (1) Determination through open negotiation (A) In general With respect to an item or service furnished in a year by a nonparticipating provider or a nonparticipating facility, with respect to a health plan, in a State described in subparagraph (B) of subsection (k)(11) with respect to such plan and provider or facility, and for which a payment