S.Amdt. 3065

SA 3065. Mr. CARDIN (for himself and Mr. Brown) submitted an
amendment intended to be proposed to amendment SA 2786 proposed by Mr.
Reid (for himself, Mr. Baucus, Mr. Dodd, and Mr. Harkin) to the bill
H.R. 3590, to amend the Internal Revenue Code of 1986 to modify the
first-time homebuyers credit in the case of members of the Armed Forces
and certain other Federal employees, and for other purposes; which was
ordered to lie on the table; as follows:

On page 396, between lines 8 and 9, insert the following:

[[Page S12729]]

Subtitle H--Patient Protections

PART I--IMPROVING MANAGED CARE

Subpart A--Utilization Review; Claims

SEC. 1601. UTILIZATION REVIEW ACTIVITIES.

(a) Compliance With Requirements.--
(1) In general.--A group health plan, and a health
insurance issuer that provides health insurance coverage,
shall conduct utilization review activities in connection
with the provision of benefits under such plan or coverage
only in accordance with a utilization review program that
meets the requirements of this section and section 1602.
(2) Use of outside agents.--Nothing in this section shall
be construed as preventing a group health plan or health
insurance issuer from arranging through a contract or
otherwise for persons or entities to conduct utilization
review activities on behalf of the plan or issuer, so long as
such activities are conducted in accordance with a
utilization review program that meets the requirements of
this section.
(3) Utilization review defined.--For purposes of this
section, the terms ``utilization review'' and ``utilization
review activities'' mean procedures used to monitor or
evaluate the use or coverage, clinical necessity,
appropriateness, efficacy, or efficiency of health care
services, procedures or settings, and includes prospective
review, concurrent review, second opinions, case management,
discharge planning, or retrospective review.
(b) Written Policies and Criteria.--
(1) Written policies.--A utilization review program shall
be conducted consistent with written policies and procedures
that govern all aspects of the program.
(2) Use of written criteria.--
(A) In general.--Such a program shall utilize written
clinical review criteria developed with input from a range of
appropriate actively practicing health care professionals, as
determined by the plan, pursuant to the program. Such
criteria shall include written clinical review criteria that
are based on valid clinical evidence where available and that
are directed specifically at meeting the needs of at-risk
populations and covered individuals with chronic conditions
or severe illnesses, including gender-specific criteria and
pediatric-specific criteria where available and appropriate.
(B) Continuing use of standards in retrospective review.--
If a health care service has been specifically pre-authorized
or approved for a participant, beneficiary, or enrollee under
such a program, the program shall not, pursuant to
retrospective review, revise or modify the specific
standards, criteria, or procedures used for the utilization
review for procedures, treatment, and services delivered to
the enrollee during the same course of treatment.
(C) Review of sample of claims denials.--Such a program
shall provide for a periodic evaluation of the clinical
appropriateness of at least a sample of denials of claims for
benefits.
(c) Conduct of Program Activities.--
(1) Administration by health care professionals.--A
utilization review program shall be administered by qualified
health care professionals who shall oversee review decisions.
(2) Use of qualified, independent personnel.--
(A) In general.--A utilization review program shall provide
for the conduct of utilization review activities only through
personnel who are qualified and have received appropriate
training in the conduct of such activities under the program.
(B) Prohibition of contingent compensation arrangements.--
Such a program shall not, with respect to utilization review
activities, permit or provide compensation or anything of
value to its employees, agents, or contractors in a manner
that encourages denials of claims for benefits.
(C) Prohibition of conflicts.--Such a program shall not
permit a health care professional who is providing health
care services to an individual to perform utilization review
activities in connection with the health care services being
provided to the individual.
(3) Accessibility of review.--Such a program shall provide
that appropriate personnel performing utilization review
activities under the program, including the utilization
review administrator, are reasonably accessible by toll-free
telephone during normal business hours to discuss patient
care and allow response to telephone requests, and that
appropriate provision is made to receive and respond promptly
to calls received during other hours.
(4) Limits on frequency.--Such a program shall not provide
for the performance of utilization review activities with
respect to a class of services furnished to an individual
more frequently than is reasonably required to assess whether
the services under review are medically necessary and
appropriate.

SEC. 1602. PROCEDURES FOR INITIAL CLAIMS FOR BENEFITS AND
PRIOR AUTHORIZATION DETERMINATIONS.

(a) Procedures of Initial Claims for Benefits.--
(1) In general.--A group health plan, or health insurance
issuer offering health insurance coverage, shall--
(A) make a determination on an initial claim for benefits
by a participant, beneficiary, or enrollee (or authorized
representative) regarding payment or coverage for items or
services under the terms and conditions of the plan or
coverage involved, including any cost-sharing amount that the
participant, beneficiary, or enrollee is required to pay with
respect to such claim for benefits; and
(B) notify a participant, beneficiary, or enrollee (or
authorized representative) and the treating health care
professional involved regarding a determination on an initial
claim for benefits made under the terms and conditions of the
plan or coverage, including any cost-sharing amounts that the
participant, beneficiary, or enrollee may be required to make
with respect to such claim for benefits.
(2) Access to information.--
(A) Timely provision of necessary information.--With
respect to an initial claim for benefits, the participant,
beneficiary, or enrollee (or authorized representative) and
the treating health care professional (if any) shall provide
the plan or issuer with access to information requested by
the plan or issuer that is necessary to make a determination
relating to the claim. Such access shall be provided not
later than 5 days after the date on which the request for
information is received, or, in a case described in
subparagraph (B) or (C) of subsection (b)(1), by such earlier
time as may be necessary to comply with the applicable
timeline under such subparagraph.
(B) Limited effect of failure on plan or issuer's
obligations.--Failure of the participant, beneficiary, or
enrollee to comply with the requirements of subparagraph (A)
shall not remove the obligation of the plan or issuer to make
a decision in accordance with the medical exigencies of the
case and as soon as possible, based on the available
information, and failure to comply with the time limit
established by this paragraph shall not remove the obligation
of the plan or issuer to comply with the requirements of this
section.
(3) Oral requests.--In the case of a claim for benefits
involving an expedited or concurrent determination, a
participant, beneficiary, or enrollee (or authorized
representative) may make an initial claim for benefits
orally, but a group health plan, or health insurance issuer
offering health insurance coverage, may require that the
participant, beneficiary, or enrollee (or authorized
representative) provide written confirmation of such request
in a timely manner on a form provided by the plan or issuer.
In the case of such an oral request for benefits, the making
of the request (and the timing of such request) shall be
treated as the making at that time of a claims for such
benefits without regard to whether and when a written
confirmation of such request is made.
(b) Timeline for Making Determinations.--
(1) Prior authorization determination.--
(A) In general.--A group health plan, or health insurance
issuer offering health insurance coverage, shall make a prior
authorization determination on a claim for benefits (whether
oral or written) in accordance with the medical exigencies of
the case and as soon as possible, but in no case later than
14 days from the date on which the plan or issuer receives
information that is reasonably necessary to enable the plan
or issuer to make a determination on the request for prior
authorization and in no case later than 28 days after the
date of the claim for benefits is received.
(B) Expedited determination.--Notwithstanding subparagraph
(A), a group health plan, or health insurance issuer offering
health insurance coverage, shall expedite a prior
authorization determination on a claim for benefits described
in such subparagraph when a request for such an expedited
determination is made by a participant, beneficiary, or
enrollee (or authorized representative) at any time during
the process for making a determination and a health care
professional certifies, with the request, that a
determination under the procedures described in subparagraph
(A) would seriously jeopardize the life or health of the
participant, beneficiary, or enrollee or the ability of the
participant, beneficiary, or enrollee to maintain or regain
maximum function. Such determination shall be made in
accordance with the medical exigencies of the case and as
soon as possible, but in no case later than 72 hours after
the time the request is received by the plan or issuer under
this subparagraph.
(C) Ongoing care.--
(i) Concurrent review.--

(I) In general.--Subject to clause (ii), in the case of a
concurrent review of ongoing care (including
hospitalization), which results in a termination or reduction
of such care, the plan or issuer must provide by telephone
and in printed form notice of the concurrent review
determination to the individual or the individual's designee
and the individual's health care provider in accordance with
the medical exigencies of the case and as soon as possible.
(II) Contents of notice.--Such notice shall include, with
respect to ongoing health care items and services, the number
of ongoing services approved, the new total of approved
services, the date of onset of services, and the next review
date, if any, as well as a statement of the individual's
rights to further appeal.

(ii) Rule of construction.--Clause (i) shall not be
construed as requiring plans or issuers to provide coverage
of care that would exceed the coverage limitations for such
care.
(2) Retrospective determination.--A group health plan, or
health insurance issuer offering health insurance coverage,
shall make a retrospective determination on a claim for
benefits in accordance with the medical exigencies of the
case and as soon as

[[Page S12730]]

possible, but not later than 30 days after the date on which
the plan or issuer receives information that is reasonably
necessary to enable the plan or issuer to make a
determination on the claim, or, if earlier, 60 days after the
date of receipt of the claim for benefits.
(c) Notice of a Denial of a Claim for Benefits.--Written
notice of a denial made under an initial claim for benefits
shall be issued to the participant, beneficiary, or enrollee
(or authorized representative) and the treating health care
professional in accordance with the medical exigencies of the
case and as soon as possible, but in no case later than 2
days after the date of the determination (or, in the case
described in subparagraph (B) or (C) of subsection (b)(1),
within the 72-hour or applicable period referred to in such
subparagraph).
(d) Requirements of Notice of Determinations.--The written
notice of a denial of a claim for benefits determination
under subsection (c) shall be provided in printed form and
written in a manner calculated to be understood by the
participant, beneficiary, or enrollee and shall include--
(1) the specific reasons for the determination (including a
summary of the clinical or scientific evidence used in making
the determination); and
(2) the procedures for obtaining additional information
concerning the determination.
(e) Definitions.--For purposes of this part:
(1) Authorized representative.--The term ``authorized
representative'' means, with respect to an individual who is
a participant, beneficiary, or enrollee, any health care
professional or other person acting on behalf of the
individual with the individual's consent or without such
consent if the individual is medically unable to provide such
consent.
(2) Claim for benefits.--The term ``claim for benefits''
means any request for coverage (including authorization of
coverage), for eligibility, or for payment in whole or in
part, for an item or service under a group health plan or
health insurance coverage.
(3) Denial of claim for benefits.--The term ``denial''
means, with respect to a claim for benefits, a denial (in
whole or in part) of, or a failure to act on a timely basis
upon, the claim for benefits and includes a failure to
provide benefits (including items and services) required to
be provided under this part.
(4) Treating health care professional.--The term ``treating
health care professional'' means, with respect to services to
be provided to a participant, beneficiary, or enrollee, a
health care professional who is primarily responsible for
delivering those services to the participant, beneficiary, or
enrollee.

Subpart B--Access to Care

SEC. 1611. CHOICE OF HEALTH CARE PROFESSIONAL.

(a) Primary Care.--If a group health plan, or a health
insurance issuer that offers health insurance coverage,
requires or provides for designation by a participant,
beneficiary, or enrollee of a participating primary care
provider, then the plan or issuer shall permit each
participant, beneficiary, and enrollee to designate any
participating primary care provider who is available to
accept such individual.
(b) Specialists.--
(1) In general.--Subject to paragraph (2), a group health
plan and a health insurance issuer that offers health
insurance coverage shall permit each participant,
beneficiary, or enrollee to receive medically necessary and
appropriate specialty care, pursuant to appropriate referral
procedures, from any qualified participating health care
professional who is available to accept such individual for
such care.
(2) Limitation.--Paragraph (1) shall not apply to specialty
care if the plan or issuer clearly informs participants,
beneficiaries, and enrollees of the limitations on choice of
participating health care professionals with respect to such
care.
(3) Construction.--Nothing in this subsection shall be
construed as affecting the application of section 114
(relating to access to specialty care).

SEC. 1612. ACCESS TO EMERGENCY CARE.

(a) Coverage of Emergency Services.--
(1) In general.--If a group health plan, or health
insurance coverage offered by a health insurance issuer,
provides or covers any benefits with respect to services in
an emergency department of a hospital, the plan or issuer
shall cover emergency services (as defined in paragraph
(2)(B))--
(A) without the need for any prior authorization
determination;
(B) whether the health care provider furnishing such
services is a participating provider with respect to such
services;
(C) in a manner so that, if such services are provided to a
participant, beneficiary, or enrollee--
(i) by a nonparticipating health care provider with or
without prior authorization, or
(ii) by a participating health care provider without prior
authorization, the participant, beneficiary, or enrollee is
not liable for amounts that exceed the amounts of liability
that would be incurred if the services were provided by a
participating health care provider with prior authorization;
and
(D) without regard to any other term or condition of such
coverage (other than exclusion or coordination of benefits,
or an affiliation or waiting period, permitted under section
2701 of the Public Health Service Act, section 701 of the
Employee Retirement Income Security Act of 1974, or section
9801 of the Internal Revenue Code of 1986, and other than
applicable cost-sharing).
(2) Definitions.--In this section:
(A) Emergency medical condition.--The term ``emergency
medical condition'' means a medical condition manifesting
itself by acute symptoms of sufficient severity (including
severe pain) such that a prudent layperson, who possesses an
average knowledge of health and medicine, could reasonably
expect the absence of immediate medical attention to result
in a condition described in clause (i), (ii), or (iii) of
section 1867(e)(1)(A) of the Social Security Act.
(B) Emergency services.--The term ``emergency services''
means, with respect to an emergency medical condition--
(i) a medical screening examination (as required under
section 1867 of the Social Security Act) that is within the
capability of the emergency department of a hospital,
including ancillary services routinely available to the
emergency department to evaluate such emergency medical
condition, and
(ii) within the capabilities of the staff and facilities
available at the hospital, such further medical examination
and treatment as are required under section 1867 of such Act
to stabilize the patient.
(C) Stabilize.--The term ``to stabilize'', with respect to
an emergency medical condition (as defined in subparagraph
(A)), has the meaning give in section 1867(e)(3) of the
Social Security Act (42 U.S.C. 1395dd(e)(3)).
(b) Reimbursement for Maintenance Care and Post-
Stabilization Care.--A group health plan, and health
insurance coverage offered by a health insurance issuer, must
provide reimbursement for maintenance care and post-
stabilization care in accordance with the requirements of
section 1852(d)(2) of the Social Security Act (42 U.S.C.
1395w-22(d)(2)). Such reimbursement shall be provided in a
manner consistent with subsection (a)(1)(C).
(c) Coverage of Emergency Ambulance Services.--
(1) In general.--If a group health plan, or health
insurance coverage provided by a health insurance issuer,
provides any benefits with respect to ambulance services and
emergency services, the plan or issuer shall cover emergency
ambulance services (as defined in paragraph (2)) furnished
under the plan or coverage under the same terms and
conditions under subparagraphs (A) through (D) of subsection
(a)(1) under which coverage is provided for emergency
services.
(2) Emergency ambulance services.--For purposes of this
subsection, the term ``emergency ambulance services'' means
ambulance services (as defined for purposes of section
1861(s)(7) of the Social Security Act) furnished to transport
an individual who has an emergency medical condition (as
defined in subsection (a)(2)(A)) to a hospital for the
receipt of emergency services (as defined in subsection
(a)(2)(B)) in a case in which the emergency services are
covered under the plan or coverage pursuant to subsection
(a)(1) and a prudent layperson, with an average knowledge of
health and medicine, could reasonably expect that the absence
of such transport would result in placing the health of the
individual in serious jeopardy, serious impairment of bodily
function, or serious dysfunction of any bodily organ or part.

SEC. 1613. TIMELY ACCESS TO SPECIALISTS.

(a) Timely Access.--
(1) In general.--A group health plan or health insurance
issuer offering health insurance coverage shall ensure that
participants, beneficiaries, and enrollees receive timely
access to specialists who are appropriate to the condition
of, and accessible to, the participant, beneficiary, or
enrollee, when such specialty care is a covered benefit under
the plan or coverage.
(2) Rule of construction.--Nothing in paragraph (1) shall
be construed--
(A) to require the coverage under a group health plan or
health insurance coverage of benefits or services;
(B) to prohibit a plan or issuer from including providers
in the network only to the extent necessary to meet the needs
of the plan's or issuer's participants, beneficiaries, or
enrollees; or
(C) to override any State licensure or scope-of-practice
law.
(3) Access to certain providers.--
(A) In general.--With respect to specialty care under this
section, if a participating specialist is not available and
qualified to provide such care to the participant,
beneficiary, or enrollee, the plan or issuer shall provide
for coverage of such care by a nonparticipating specialist.
(B) Treatment of nonparticipating providers.--If a
participant, beneficiary, or enrollee receives care from a
nonparticipating specialist pursuant to subparagraph (A),
such specialty care shall be provided at no additional cost
to the participant, beneficiary, or enrollee beyond what the
participant, beneficiary, or enrollee would otherwise pay for
such specialty care if provided by a participating
specialist.
(b) Referrals.--
(1) Authorization.--Subject to subsection (a)(1), a group
health plan or health insurance issuer may require an
authorization in order to obtain coverage for specialty
services under this section. Any such authorization--
(A) shall be for an appropriate duration of time or number
of referrals, including an authorization for a standing
referral where appropriate; and

[[Page S12731]]

(B) may not be refused solely because the authorization
involves services of a nonparticipating specialist (described
in subsection (a)(3)).
(2) Referrals for ongoing special conditions.--
(A) In general.--Subject to subsection (a)(1), a group
health plan or health insurance issuer shall permit a
participant, beneficiary, or enrollee who has an ongoing
special condition (as defined in subparagraph (B)) to receive
a referral to a specialist for the treatment of such
condition and such specialist may authorize such referrals,
procedures, tests, and other medical services with respect to
such condition, or coordinate the care for such condition,
subject to the terms of a treatment plan (if any) referred to
in subsection (c) with respect to the condition.
(B) Ongoing special condition defined.--In this subsection,
the term ``ongoing special condition'' means a condition or
disease that--
(i) is life-threatening, degenerative, potentially
disabling, or congenital; and
(ii) requires specialized medical care over a prolonged
period of time.
(c) Treatment Plans.--
(1) In general.--A group health plan or health insurance
issuer may require that the specialty care be provided--
(A) pursuant to a treatment plan, but only if the treatment
plan--
(i) is developed by the specialist, in consultation with
the case manager or primary care provider, and the
participant, beneficiary, or enrollee, and
(ii) is approved by the plan or issuer in a timely manner,
if the plan or issuer requires such approval; and
(B) in accordance with applicable quality assurance and
utilization review standards of the plan or issuer.
(2) Notification.--Nothing in paragraph (1) shall be
construed as prohibiting a plan or issuer from requiring the
specialist to provide the plan or issuer with regular updates
on the specialty care provided, as well as all other
reasonably necessary medical information.
(d) Specialist Defined.--For purposes of this section, the
term ``specialist'' means, with respect to the condition of
the participant, beneficiary, or enrollee, a health care
professional, facility, or center that has adequate expertise
through appropriate training and experience (including, in
the case of a child, appropriate pediatric expertise) to
provide high quality care in treating the condition.

SEC. 1614. ACCESS TO PEDIATRIC CARE.

(a) Pediatric Care.--In the case of a person who has a
child who is a participant, beneficiary, or enrollee under a
group health plan, or health insurance coverage offered by a
health insurance issuer, if the plan or issuer requires or
provides for the designation of a participating primary care
provider for the child, the plan or issuer shall permit such
person to designate a physician (allopathic or osteopathic)
who specializes in pediatrics as the child's primary care
provider if such provider participates in the network of the
plan or issuer.
(b) Construction.--Nothing in subsection (a) shall be
construed to waive any exclusions of coverage under the terms
and conditions of the plan or health insurance coverage with
respect to coverage of pediatric care.

SEC. 1615. PATIENT ACCESS TO OBSTETRICAL AND GYNECOLOGICAL
CARE.

(a) General Rights.--
(1) Direct access.--A group health plan, or health
insurance issuer offering health insurance coverage,
described in subsection (b) may not require authorization or
referral by the plan, issuer, or any person (including a
primary care provider described in subsection (b)(2)) in the
case of a female participant, beneficiary, or enrollee who
seeks coverage for obstetrical or gynecological care provided
by a participating health care professional who specializes
in obstetrics or gynecology.
(2) Obstetrical and gynecological care.--A group health
plan or health insurance issuer described in subsection (b)
shall treat the provision of obstetrical and gynecological
care, and the ordering of related obstetrical and
gynecological items and services, pursuant to the direct
access described under paragraph (1), by a participating
health care professional who specializes in obstetrics or
gynecology as the authorization of the primary care provider.
(b) Application of Section.--A group health plan, or health
insurance issuer offering health insurance coverage,
described in this subsection is a group health plan or
coverage that--
(1) provides coverage for obstetric or gynecologic care;
and
(2) requires the designation by a participant, beneficiary,
or enrollee of a participating primary care provider.
(c) Construction.--Nothing in subsection (a) shall be
construed to--
(1) waive any exclusions of coverage under the terms and
conditions of the plan or health insurance coverage with
respect to coverage of obstetrical or gynecological care; or
(2) preclude the group health plan or health insurance
issuer involved from requiring that the obstetrical or
gynecological provider notify the primary care health care
professional or the plan or issuer of treatment decisions.

SEC. 1616. CONTINUITY OF CARE.

(a) Termination of Provider.--
(1) In general.--If--
(A) a contract between a group health plan, or a health
insurance issuer offering health insurance coverage, and a
treating health care provider is terminated (as defined in
subsection (e)(4)), or
(B) benefits or coverage provided by a health care provider
are terminated because of a change in the terms of provider
participation in such plan or coverage,
the plan or issuer shall meet the requirements of paragraph
(3) with respect to each continuing care patient.
(2) Treatment of termination of contract with health
insurance issuer.--If a contract for the provision of health
insurance coverage between a group health plan and a health
insurance issuer is terminated and, as a result of such
termination, coverage of services of a health care provider
is terminated with respect to an individual, the provisions
of paragraph (1) (and the succeeding provisions of this
section) shall apply under the plan in the same manner as if
there had been a contract between the plan and the provider
that had been terminated, but only with respect to benefits
that are covered under the plan after the contract
termination.
(3) Requirements.--The requirements of this paragraph are
that the plan or issuer--
(A) notify the continuing care patient involved, or arrange
to have the patient notified pursuant to subsection (d)(2),
on a timely basis of the termination described in paragraph
(1) (or paragraph (2), if applicable) and the right to elect
continued transitional care from the provider under this
section;
(B) provide the patient with an opportunity to notify the
plan or issuer of the patient's need for transitional care;
and
(C) subject to subsection (c), permit the patient to elect
to continue to be covered with respect to the course of
treatment by such provider with the provider's consent during
a transitional period (as provided for under subsection (b)).
(4) Continuing care patient.--For purposes of this section,
the term ``continuing care patient'' means a participant,
beneficiary, or enrollee who--
(A) is undergoing a course of treatment for a serious and
complex condition from the provider at the time the plan or
issuer receives or provides notice of provider, benefit, or
coverage termination described in paragraph (1) (or paragraph
(2), if applicable);
(B) is undergoing a course of institutional or inpatient
care from the provider at the time of such notice;
(C) is scheduled to undergo non-elective surgery from the
provider at the time of such notice;
(D) is pregnant and undergoing a course of treatment for
the pregnancy from the provider at the time of such notice;
or
(E) is or was determined to be terminally ill (as
determined under section 1861(dd)(3)(A) of the Social
Security Act) at the time of such notice, but only with
respect to a provider that was treating the terminal illness
before the date of such notice.
(b) Transitional Periods.--
(1) Serious and complex conditions.--The transitional
period under this subsection with respect to a continuing
care patient described in subsection (a)(4)(A) shall extend
for up to 90 days (as determined by the treating health care
professional) from the date of the notice described in
subsection (a)(3)(A).
(2) Institutional or inpatient care.--The transitional
period under this subsection for a continuing care patient
described in subsection (a)(4)(B) shall extend until the
earlier of--
(A) the expiration of the 90-day period beginning on the
date on which the notice under subsection (a)(3)(A) is
provided; or
(B) the date of discharge of the patient from such care or
the termination of the period of institutionalization, or, if
later, the date of completion of reasonable follow-up care.
(3) Scheduled non-elective surgery.--The transitional
period under this subsection for a continuing care patient
described in subsection (a)(4)(C) shall extend until the
completion of the surgery involved and post-surgical follow-
up care relating to the surgery and occurring within 90 days
after the date of the surgery.
(4) Pregnancy.--The transitional period under this
subsection for a continuing care patient described in
subsection (a)(4)(D) shall extend through the provision of
post-partum care directly related to the delivery.
(5) Terminal illness.--The transitional period under this
subsection for a continuing care patient described in
subsection (a)(4)(E) shall extend for the remainder of the
patient's life for care that is directly related to the
treatment of the terminal illness or its medical
manifestations.
(c) Permissible Terms and Conditions.--A group health plan
or health insurance issuer may condition coverage of
continued treatment by a provider under this section upon the
provider agreeing to the following terms and conditions:
(1) The treating health care provider agrees to accept
reimbursement from the plan or issuer and continuing care
patient involved (with respect to cost-sharing) at the rates
applicable prior to the start of the transitional period as
payment in full (or, in the case described in subsection
(a)(2), at the rates applicable under the replacement plan or
coverage after the date of the termination of the contract
with the group health plan or health insurance issuer) and
not to impose cost-sharing with respect to the patient in

[[Page S12732]]

an amount that would exceed the cost-sharing that could have
been imposed if the contract referred to in subsection (a)(1)
had not been terminated.
(2) The treating health care provider agrees to adhere to
the quality assurance standards of the plan or issuer
responsible for payment under paragraph (1) and to provide to
such plan or issuer necessary medical information related to
the care provided.
(3) The treating health care provider agrees otherwise to
adhere to such plan's or issuer's policies and procedures,
including procedures regarding referrals and obtaining prior
authorization and providing services pursuant to a treatment
plan (if any) approved by the plan or issuer.
(d) Rules of Construction.--Nothing in this section shall
be construed--
(1) to require the coverage of benefits which would not
have been covered if the provider involved remained a
participating provider; or
(2) with respect to the termination of a contract under
subsection (a) to prevent a group health plan or health
insurance issuer from requiring that the health care
provider--
(A) notify participants, beneficiaries, or enrollees of
their rights under this section; or
(B) provide the plan or issuer with the name of each
participant, beneficiary, or enrollee who the provider
believes is a continuing care patient.
(e) Definitions.--In this section:
(1) Contract.--The term ``contract'' includes, with respect
to a plan or issuer and a treating health care provider, a
contract between such plan or issuer and an organized network
of providers that includes the treating health care provider,
and (in the case of such a contract) the contract between the
treating health care provider and the organized network.
(2) Health care provider.--The term ``health care
provider'' or ``provider'' means--
(A) any individual who is engaged in the delivery of health
care services in a State and who is required by State law or
regulation to be licensed or certified by the State to engage
in the delivery of such services in the State; and
(B) any entity that is engaged in the delivery of health
care services in a State and that, if it is required by State
law or regulation to be licensed or certified by the State to
engage in the delivery of such services in the State, is so
licensed.
(3) Serious and complex condition.--The term ``serious and
complex condition'' means, with respect to a participant,
beneficiary, or enrollee under the plan or coverage--
(A) in the case of an acute illness, a condition that is
serious enough to require specialized medical treatment to
avoid the reasonable possibility of death or permanent harm;
or
(B) in the case of a chronic illness or condition, is an
ongoing special condition (as defined in section (b)(2)(B)).
(4) Terminated.--The term ``terminated'' includes, with
respect to a contract, the expiration or nonrenewal of the
contract, but does not include a termination of the contract
for failure to meet applicable quality standards or for
fraud.

Subpart C--Protecting the Doctor-Patient Relationship

SEC. 1621. PROHIBITION OF INTERFERENCE WITH CERTAIN MEDICAL
COMMUNICATIONS.

(a) General Rule.--The provisions of any contract or
agreement, or the operation of any contract or agreement,
between a group health plan or health insurance issuer in
relation to health insurance coverage (including any
partnership, association, or other organization that enters
into or administers such a contract or agreement) and a
health care provider (or group of health care providers)
shall not prohibit or otherwise restrict a health care
professional from advising such a participant, beneficiary,
or enrollee who is a patient of the professional about the
health status of the individual or medical care or treatment
for the individual's condition or disease, regardless of
whether benefits for such care or treatment are provided
under the plan or coverage, if the professional is acting
within the lawful scope of practice.
(b) Nullification.--Any contract provision or agreement
that restricts or prohibits medical communications in
violation of subsection (a) shall be null and void.

Subpart D--Definitions

SEC. 1631. DEFINITIONS.

(a) Incorporation of General Definitions.--Except as
otherwise provided, the provisions of section 2791 of the
Public Health Service Act shall apply for purposes of this
part in the same manner as they apply for purposes of title
XXVII of such Act.
(b) Secretary.--Except as otherwise provided, the term
``Secretary'' means the Secretary of Health and Human
Services, in consultation with the Secretary of Labor and the
term ``appropriate Secretary'' means the Secretary of Health
and Human Services in relation to carrying out this part
under sections 2706 and 2751 of the Public Health Service Act
and the Secretary of Labor in relation to carrying out this
part under section 713 of the Employee Retirement Income
Security Act of 1974.
(c) Additional Definitions.--For purposes of this part:
(1) Applicable authority.--The term ``applicable
authority'' means--
(A) in the case of a group health plan, the Secretary of
Health and Human Services and the Secretary of Labor; and
(B) in the case of a health insurance issuer with respect
to a specific provision of this part, the applicable State
authority (as defined in section 2791(d) of the Public Health
Service Act), or the Secretary of Health and Human Services,
if such Secretary is enforcing such provision under section
2722(a)(2) or 2761(a)(2) of the Public Health Service Act.
(2) Enrollee.--The term ``enrollee'' means, with respect to
health insurance coverage offered by a health insurance
issuer, an individual enrolled with the issuer to receive
such coverage.
(3) Group health plan.--The term ``group health plan'' has
the meaning given such term in section 733(a) of the Employee
Retirement Income Security Act of 1974, except that such term
includes a employee welfare benefit plan treated as a group
health plan under section 732(d) of such Act or defined as
such a plan under section 607(1) of such Act.
(4) Health care professional.--The term ``health care
professional'' means an individual who is licensed,
accredited, or certified under State law to provide specified
health care services and who is operating within the scope of
such licensure, accreditation, or certification.
(5) Health care provider.--The term ``health care
provider'' includes a physician or other health care
professional, as well as an institutional or other facility
or agency that provides health care services and that is
licensed, accredited, or certified to provide health care
items and services under applicable State law.
(6) Network.--The term ``network'' means, with respect to a
group health plan or health insurance issuer offering health
insurance coverage, the participating health care
professionals and providers through whom the plan or issuer
provides health care items and services to participants,
beneficiaries, or enrollees.
(7) Nonparticipating.--The term ``nonparticipating'' means,
with respect to a health care provider that provides health
care items and services to a participant, beneficiary, or
enrollee under group health plan or health insurance
coverage, a health care provider that is not a participating
health care provider with respect to such items and services.
(8) Participating.--The term ``participating'' means, with
respect to a health care provider that provides health care
items and services to a participant, beneficiary, or enrollee
under group health plan or health insurance coverage offered
by a health insurance issuer, a health care provider that
furnishes such items and services under a contract or other
arrangement with the plan or issuer.
(9) Prior authorization.--The term ``prior authorization''
means the process of obtaining prior approval from a health
insurance issuer or group health plan for the provision or
coverage of medical services.
(10) Terms and conditions.--The term ``terms and
conditions'' includes, with respect to a group health plan or
health insurance coverage, requirements imposed under this
part with respect to the plan or coverage.

SEC. 1632. PREEMPTION; STATE FLEXIBILITY; CONSTRUCTION.

(a) Continued Applicability of State Law With Respect to
Health Insurance Issuers.--
(1) In general.--Subject to paragraph (2), this part shall
not be construed to supersede any provision of State law
which establishes, implements, or continues in effect any
standard or requirement solely relating to health insurance
issuers (in connection with group health insurance coverage
or otherwise) except to the extent that such standard or
requirement prevents the application of a requirement of this
part.
(2) Continued preemption with respect to group health
plans.--Nothing in this part shall be construed to affect or
modify the provisions of section 514 of the Employee
Retirement Income Security Act of 1974 with respect to group
health plans.
(3) Construction.--In applying this section, a State law
that provides for equal access to, and availability of, all
categories of licensed health care providers and services
shall not be treated as preventing the application of any
requirement of this part.
(b) Application of Substantially Compliant State Laws.--
(1) In general.--In the case of a State law that imposes,
with respect to health insurance coverage offered by a health
insurance issuer and with respect to a group health plan that
is a non-Federal governmental plan, a requirement that
substantially complies (within the meaning of subsection (c))
with a patient protection requirement (as defined in
paragraph (3)) and does not prevent the application of other
requirements under this subtitle (except in the case of other
substantially compliant requirements), in applying the
requirements of this part under section 2720 and 2754 (as
applicable) of the Public Health Service Act (as added by
part II), subject to subsection (a)(2)--
(A) the State law shall not be treated as being superseded
under subsection (a); and
(B) the State law shall apply instead of the patient
protection requirement otherwise applicable with respect to
health insurance coverage and non-Federal governmental plans.

[[Page S12733]]

(2) Limitation.--In the case of a group health plan covered
under title I of the Employee Retirement Income Security Act
of 1974, paragraph (1) shall be construed to apply only with
respect to the health insurance coverage (if any) offered in
connection with the plan.
(3) Definitions.--In this section:
(A) Patient protection requirement.--The term ``patient
protection requirement'' means a requirement under this part,
and includes (as a single requirement) a group or related set
of requirements under a section or similar unit under this
part.
(B) Substantially compliant.--The terms ``substantially
compliant'', substantially complies'', or ``substantial
compliance'' with respect to a State law, mean that the State
law has the same or similar features as the patient
protection requirements and has a similar effect.
(c) Determinations of Substantial Compliance.--
(1) Certification by states.--A State may submit to the
Secretary a certification that a State law provides for
patient protections that are at least substantially compliant
with one or more patient protection requirements. Such
certification shall be accompanied by such information as may
be required to permit the Secretary to make the determination
described in paragraph (2)(A).
(2) Review.--
(A) In general.--The Secretary shall promptly review a
certification submitted under paragraph (1) with respect to a
State law to determine if the State law substantially
complies with the patient protection requirement (or
requirements) to which the law relates.
(B) Approval deadlines.--
(i) Initial review.--Such a certification is considered
approved unless the Secretary notifies the State in writing,
within 90 days after the date of receipt of the
certification, that the certification is disapproved (and the
reasons for disapproval) or that specified additional
information is needed to make the determination described in
subparagraph (A).
(ii) Additional information.--With respect to a State that
has been notified by the Secretary under clause (i) that
specified additional information is needed to make the
determination described in subparagraph (A), the Secretary
shall make the determination within 60 days after the date on
which such specified additional information is received by
the Secretary.
(3) Approval.--
(A) In general.--The Secretary shall approve a
certification under paragraph (1) unless--
(i) the State fails to provide sufficient information to
enable the Secretary to make a determination under paragraph
(2)(A); or
(ii) the Secretary determines that the State law involved
does not provide for patient protections that substantially
comply with the patient protection requirement (or
requirements) to which the law relates.
(B) State challenge.--A State that has a certification
disapproved by the Secretary under subparagraph (A) may
challenge such disapproval in the appropriate United States
district court.
(C) Deference to states.--With respect to a certification
submitted under paragraph (1), the Secretary shall give
deference to the State's interpretation of the State law
involved and the compliance of the law with a patient
protection requirement.
(D) Public notification.--The Secretary shall--
(i) provide a State with a notice of the determination to
approve or disapprove a certification under this paragraph;
(ii) promptly publish in the Federal Register a notice that
a State has submitted a certification under paragraph (1);
(iii) promptly publish in the Federal Register the notice
described in clause (i) with respect to the State; and
(iv) annually publish the status of all States with respect
to certifications.
(4) Construction.--Nothing in this subsection shall be
construed as preventing the certification (and approval of
certification) of a State law under this subsection solely
because it provides for greater protections for patients than
those protections otherwise required to establish substantial
compliance.
(5) Petitions.--
(A) Petition process.--Effective on the date on which the
provisions of this subtitle become effective, as provided for
in section 1652, a group health plan, health insurance
issuer, participant, beneficiary, or enrollee may submit a
petition to the Secretary for an advisory opinion as to
whether or not a standard or requirement under a State law
applicable to the plan, issuer, participant, beneficiary, or
enrollee that is not the subject of a certification under
this subsection, is superseded under subsection (a)(1)
because such standard or requirement prevents the application
of a requirement of this part.
(B) Opinion.--The Secretary shall issue an advisory opinion
with respect to a petition submitted under subparagraph (A)
within the 60-day period beginning on the date on which such
petition is submitted.
(d) Definitions.--For purposes of this section:
(1) State law.--The term ``State law'' includes all laws,
decisions, rules, regulations, or other State action having
the effect of law, of any State. A law of the United States
applicable only to the District of Columbia shall be treated
as a State law rather than a law of the United States.
(2) State.--The term ``State'' includes a State, the
District of Columbia, Puerto Rico, the Virgin Islands, Guam,
American Samoa, the Northern Mariana Islands, any political
subdivisions of such, or any agency or instrumentality of
such.

SEC. 1633. REGULATIONS.

The Secretaries of Health and Human Services and Labor
shall issue such regulations as may be necessary or
appropriate to carry out this part. Such regulations shall be
issued consistent with section 104 of Health Insurance
Portability and Accountability Act of 1996. Such Secretaries
may promulgate any interim final rules as the Secretaries
determine are appropriate to carry out this part.

SEC. 1634. INCORPORATION INTO PLAN OR COVERAGE DOCUMENTS.

The requirements of this part with respect to a group
health plan or health insurance coverage are deemed to be
incorporated into, and made a part of, such plan or the
policy, certificate, or contract providing such coverage and
are enforceable under law as if directly included in the
documentation of such plan or such policy, certificate, or
contract.

PART II--APPLICATION OF QUALITY CARE STANDARDS TO GROUP HEALTH PLANS
AND HEALTH INSURANCE COVERAGE UNDER THE PUBLIC HEALTH SERVICE ACT

SEC. 1641. APPLICATION TO GROUP HEALTH PLANS AND GROUP HEALTH
INSURANCE COVERAGE.

(a) In General.--Subpart 2 of part A of title XXVII of the
Public Health Service Act, as amended by section 1001, is
further amended by adding at the end the following new
section:

``SEC. 2720. PATIENT PROTECTION STANDARDS.

``Each group health plan shall comply with patient
protection requirements under part I of subtitle H of title I
of the Patient Protection and Affordable Care Act, and each
health insurance issuer shall comply with patient protection
requirements under such part with respect to group health
insurance coverage it offers, and such requirements shall be
deemed to be incorporated into this subsection.''.
(b) Conforming Amendment.--Section 2721(b)(2)(A) of such
Act (42 U.S.C. 300gg-21(b)(2)(A)) is amended by inserting
``(other than section 2720)'' after ``requirements of such
subparts''.

SEC. 1642. APPLICATION TO INDIVIDUAL HEALTH INSURANCE
COVERAGE.

Part B of title XXVII of the Public Health Service Act is
amended by inserting after section 2753 the following new
section:

``SEC. 2754. PATIENT PROTECTION STANDARDS.

``Each health insurance issuer shall comply with patient
protection requirements under part I of subtitle H of title I
of the Patient Protection and Affordable Care Act with
respect to individual health insurance coverage it offers,
and such requirements shall be deemed to be incorporated into
this subsection.''.

SEC. 1643. COOPERATION BETWEEN FEDERAL AND STATE AUTHORITIES.

Part C of title XXVII of the Public Health Service Act (42
U.S.C. 300gg-91 et seq.), as amended by section 1002, is
further amended by adding at the end the following:

``SEC. 2795. COOPERATION BETWEEN FEDERAL AND STATE
AUTHORITIES.

``(a) Agreement With States.--A State may enter into an
agreement with the Secretary for the delegation to the State
of some or all of the Secretary's authority under this title
to enforce the requirements applicable under part I of
subtitle H of title I of the Patient Protection and
Affordable Care Act with respect to health insurance coverage
offered by a health insurance issuer and with respect to a
group health plan that is a non-Federal governmental plan.
``(b) Delegations.--Any department, agency, or
instrumentality of a State to which authority is delegated
pursuant to an agreement entered into under this section may,
if authorized under State law and to the extent consistent
with such agreement, exercise the powers of the Secretary
under this title which relate to such authority.''.

PART III--AMENDMENTS TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974

SEC. 1651. APPLICATION OF PATIENT PROTECTION STANDARDS TO
GROUP HEALTH PLANS AND GROUP HEALTH INSURANCE
COVERAGE UNDER THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974.

(a) In General.--Subpart B of part 7 of subtitle B of title
I of the Employee Retirement Income Security Act of 1974, as
amended by section 1562, is further amended by adding at the
end the following new section:

``SEC. 716. PATIENT PROTECTION STANDARDS.

``(a) In General.--Subject to subsection (b), a group
health plan (and a health insurance issuer offering group
health insurance coverage in connection with such a plan)
shall comply with the requirements of part I of subtitle H of
title I of the Patient Protection and Affordable Care Act (as
in effect as of the date of the enactment of such Act), and
such requirements shall be deemed to be incorporated into
this subsection.
``(b) Plan Satisfaction of Certain Requirements.--
``(1) Satisfaction of certain requirements through
insurance.--For purposes of subsection (a), insofar as a
group health plan provides benefits in the form of health
insurance coverage through a health insurance issuer, the
plan shall be treated as meeting

[[Page S12734]]

the following requirements of part I of subtitle H of title I
of the Patient Protection and Affordable Care Act with
respect to such benefits and not be considered as failing to
meet such requirements because of a failure of the issuer to
meet such requirements so long as the plan sponsor or its
representatives did not cause such failure by the issuer:
``(A) Section 1611 (relating to choice of health care
professional).
``(B) Section 1612 (relating to access to emergency care).
``(C) Section 1613 (relating to timely access to
specialists).
``(D) Section 1614 (relating to access to pediatric care).
``(E) Section 1615 (relating to patient access to
obstetrical and gynecological care).
``(F) Section 1616 (relating to continuity of care), but
only insofar as a replacement issuer assumes the obligation
for continuity of care.
``(2) Application to prohibitions.--Pursuant to rules of
the Secretary, if a health insurance issuer offers health
insurance coverage in connection with a group health plan and
takes an action in violation of section 1621 of the Patient
Protection and Affordable Care Act (relating to prohibition
of interference with certain medical communications), the
group health plan shall not be liable for such violation
unless the plan caused such violation.
``(3) Construction.--Nothing in this subsection shall be
construed to affect or modify the responsibilities of the
fiduciaries of a group health plan under part 4 of subtitle
B.
``(4) Treatment of substantially compliant state laws.--For
purposes of applying this subsection, any reference in this
subsection to a requirement in a section or other provision
in subtitle H of title I of the Patient Protection and
Affordable Care Act with respect to a health insurance issuer
is deemed to include a reference to a requirement under a
State law that substantially complies (as determined under
section 1632(c) of such Act) with the requirement in such
section or other provisions.
``(c) Conforming Regulations.--The Secretary shall issue
regulations to coordinate the requirements on group health
plans and health insurance issuers under this section with
the requirements imposed under the other provisions of this
title.''.
(b) Satisfaction of ERISA Claims Procedure Requirement.--
Section 503 of such Act (29 U.S.C. 1133) is amended by
inserting ``(a)'' after ``Sec. 503.'' and by adding at the
end the following new subsection:
``(b) In the case of a group health plan (as defined in
section 733) compliance with the requirements of subpart A of
part I of subtitle H of title I of the Patient Protection and
Affordable Care Act, and compliance with regulations
promulgated by the Secretary, in the case of a claims denial
shall be deemed compliance with subsection (a) with respect
to such claims denial.''.
(c) Conforming Amendments.--(1) Section 732(a) of such Act
(29 U.S.C. 1185(a)) is amended by striking ``section 711''
and inserting ``sections 711 and 716''.
(2) The table of contents in section 1 of such Act is
amended by inserting after the item relating to section 715
the following new item:

``Sec. 716. Patient protection standards''.
(d) Effect on Collective Bargaining Agreements.--In the
case of health insurance coverage maintained pursuant to one
or more collective bargaining agreements between employee
representatives and one or more employers that was ratified
before the date of enactment of this title, the provisions of
this section (and the amendments made by this section) shall
not apply until the date on which the last of the collective
bargaining agreements relating to the coverage terminates.
Any coverage amendment made pursuant to a collective
bargaining agreement relating to the coverage which amends
the coverage solely to conform to any requirement added by
this section (or amendments) shall not be treated as a
termination of such collective bargaining agreement.

SEC. 1652. EFFECTIVE DATE.

This subtitle (and the amendments made by this subtitle)
shall become effective for plan years beginning on or after
the date that is 6 months after the date of enactment of this
Act.
______