[House Report 110-868]
[From the U.S. Government Publishing Office]
110th Congress Rept. 110-868
HOUSE OF REPRESENTATIVES
2d Session Part 1
======================================================================
BREAST CANCER PATIENT PROTECTION ACT OF 2008
_______
September 23, 2008.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Dingell, from the Committee on Energy and Commerce, submitted the
following
R E P O R T
[To accompany H.R. 758]
[Including cost estimate of the Congressional Budget Office]
The Committee on Energy and Commerce, to whom was referred
the bill (H.R. 758) to require that health plans provide
coverage for a minimum hospital stay for mastectomies,
lumpectomies, and lymph node dissection for the treatment of
breast cancer and coverage for secondary consultations, having
considered the same, report favorably thereon with an amendment
and recommend that the bill as amended do pass.
CONTENTS
Page
Amendment........................................................ 2
Purpose and Summary.............................................. 7
Background and Need for Legislation.............................. 8
Hearings......................................................... 10
Committee Consideration.......................................... 10
Committee Votes.................................................. 10
Committee Oversight Findings..................................... 10
Statement of General Performance Goals and Objectives............ 10
New Budget Authority, Entitlement Authority, and Tax Expenditures 10
Earmarks and Tax and Tariff Benefits............................. 11
Committee Cost Estimate.......................................... 11
Congressional Budget Office Estimate............................. 11
Federal Mandates Statement....................................... 12
Advisory Committee Statement..................................... 12
Constitutional Authority Statement............................... 12
Applicability to Legislative Branch.............................. 13
Section-by-Section Analysis of the Legislation................... 13
Changes in Existing Law Made by the Bill, as Reported............ 15
Amendment
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Breast Cancer Patient Protection Act
of 2008''.
SEC. 2. FINDINGS.
Congress finds that--
(1) the offering and operation of health plans affect
commerce among the States;
(2) health care providers located in a State serve patients
who reside in the State and patients who reside in other
States;
(3) in order to provide for uniform treatment of health care
providers and patients among the States, it is necessary to
cover health plans operating in 1 State as well as health plans
operating among the several States;
(4) currently, 20 States mandate minimum hospital stay
coverage after a patient undergoes a mastectomy;
(5) according to the American Cancer Society, there were
40,954 deaths due to breast cancer in women in 2004;
(6) according to the American Cancer Society, there are
currently over 2.0 million women living in the United States
who have been treated for breast cancer; and
(7) according to the American Cancer Society, a woman in the
United States has a 1 in 8 chance of developing invasive breast
cancer in her lifetime.
SEC. 3. AMENDMENTS TO 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 (29 U.S.C. 1185 et
seq.) is amended by adding at the end the following:
``SEC. 714. REQUIRED COVERAGE FOR MINIMUM HOSPITAL STAY FOR
MASTECTOMIES, LUMPECTOMIES, AND LYMPH NODE
DISSECTIONS FOR THE TREATMENT OF BREAST CANCER AND
COVERAGE FOR SECONDARY CONSULTATIONS.
``(a) Inpatient Care.--
``(1) In general.--A group health plan, and a health
insurance issuer providing health insurance coverage in
connection with a group health plan, that provides medical and
surgical benefits shall ensure that inpatient (and in the case
of a lumpectomy, outpatient) coverage and radiation therapy is
provided for breast cancer treatment. Such plan or coverage may
not--
``(A) except as provided for in paragraph (2)--
``(i) restrict benefits for any hospital
length of stay in connection with a mastectomy
or breast conserving surgery (such as a
lumpectomy) for the treatment of breast cancer
to less than 48 hours; or
``(ii) restrict benefits for any hospital
length of stay in connection with a lymph node
dissection for the treatment of breast cancer
to less than 24 hours; or
``(B) require that a provider obtain authorization
from the plan or the issuer for prescribing any length
of stay required under subparagraph (A) (without regard
to paragraph (2)).
``(2) Exception.--Nothing in this section shall be construed
as requiring the provision of inpatient coverage if the
attending physician and patient determine that either a shorter
period of hospital stay, or outpatient treatment, is medically
appropriate.
``(b) Prohibition on Certain Modifications.--In implementing the
requirements of this section, a group health plan, and a health
insurance issuer providing health insurance coverage in connection with
a group health plan, may not modify the terms and conditions of
coverage based on the determination by a participant or beneficiary to
request less than the minimum coverage required under subsection (a).
``(c) Notice.--A group health plan, and a health insurance issuer
providing health insurance coverage in connection with a group health
plan shall provide notice to each participant and beneficiary under
such plan regarding the coverage required by this section in accordance
with regulations promulgated by the Secretary. Such notice shall be in
writing and prominently positioned in any literature or correspondence
made available or distributed by the plan or issuer and shall be
transmitted--
``(1) in the next mailing made by the plan or issuer to the
participant or beneficiary; or
``(2) as part of any yearly informational packet sent to the
participant or beneficiary;
whichever is earlier.
``(d) Secondary Consultations.--
``(1) In general.--A group health plan, and a health
insurance issuer providing health insurance coverage in
connection with a group health plan, that provides coverage
with respect to medical and surgical services provided in
relation to the diagnosis and treatment of cancer shall ensure
that full coverage is provided for secondary consultations by
specialists in the appropriate medical fields (including
pathology, radiology, and oncology) to confirm or refute such
diagnosis. Such plan or issuer shall ensure that full coverage
is provided for such secondary consultation whether such
consultation is based on a positive or negative initial
diagnosis. In any case in which the attending physician
certifies in writing that services necessary for such a
secondary consultation are not sufficiently available from
specialists operating under the plan with respect to whose
services coverage is otherwise provided under such plan or by
such issuer, such plan or issuer shall ensure that coverage is
provided with respect to the services necessary for the
secondary consultation with any other specialist selected by
the attending physician for such purpose at no additional cost
to the individual beyond that which the individual would have
paid if the specialist was participating in the network of the
plan.
``(2) Exception.--Nothing in paragraph (1) shall be construed
as requiring the provision of secondary consultations where the
patient determines not to seek such a consultation.
``(e) Prohibition on Penalties or Incentives.--A group health plan,
and a health insurance issuer providing health insurance coverage in
connection with a group health plan, may not--
``(1) penalize or otherwise reduce or limit the reimbursement
of a provider or specialist because the provider or specialist
provided care to a participant or beneficiary in accordance
with this section;
``(2) provide financial or other incentives to a physician or
specialist to induce the physician or specialist to keep the
length of inpatient stays of patients following a mastectomy,
lumpectomy, or a lymph node dissection for the treatment of
breast cancer below certain limits or to limit referrals for
secondary consultations;
``(3) provide financial or other incentives to a physician or
specialist to induce the physician or specialist to refrain
from referring a participant or beneficiary for a secondary
consultation that would otherwise be covered by the plan or
coverage involved under subsection (d); or
``(4) deny to a woman eligibility, or continued eligibility,
to enroll or to renew coverage under the terms of the plan or
coverage solely for the purpose of avoiding the requirements of
this section.''.
(b) Clerical Amendment.--The table of contents in section 1 of the
Employee Retirement Income Security Act of 1974 is amended by inserting
after the item relating to section 713 the following:
``Sec. 714. Required coverage for minimum hospital stay for
mastectomies, lumpectomies, and lymph node dissections for the
treatment of breast cancer and coverage for secondary consultations.''.
(c) Effective Dates.--
(1) In general.--The amendments made by this section shall
apply with respect to plan years beginning on or after the date
that is 90 days after the date of enactment of this Act.
(2) Special rule for collective bargaining agreements.--In
the case of a group health plan maintained pursuant to 1 or
more collective bargaining agreements between employee
representatives and 1 or more employers ratified before the
date of enactment of this Act, the amendments made by this
section shall not apply to plan years beginning before the date
on which the last collective bargaining agreements relating to
the plan terminates (determined without regard to any extension
thereof agreed to after the date of enactment of this Act). For
purposes of this paragraph, any plan amendment made pursuant to
a collective bargaining agreement relating to the plan which
amends the plan solely to conform to any requirement added by
this section shall not be treated as a termination of such
collective bargaining agreement.
SEC. 4. AMENDMENTS TO THE PUBLIC HEALTH SERVICE ACT RELATING TO THE
GROUP MARKET.
(a) In General.--Subpart 2 of part A of title XXVII of the Public
Health Service Act (42 U.S.C. 300gg-4 et seq.) is amended by adding at
the end the following:
``SEC. 2707. REQUIRED COVERAGE FOR MINIMUM HOSPITAL STAY FOR
MASTECTOMIES, LUMPECTOMIES, AND LYMPH NODE
DISSECTIONS FOR THE TREATMENT OF BREAST CANCER AND
COVERAGE FOR SECONDARY CONSULTATIONS.
``(a) Inpatient Care.--
``(1) In general.--A group health plan, and a health
insurance issuer providing health insurance coverage in
connection with a group health plan, that provides medical and
surgical benefits shall ensure that inpatient (and in the case
of a lumpectomy, outpatient) coverage and radiation therapy is
provided for breast cancer treatment. Such plan or coverage may
not--
``(A) insofar as the attending physician, in
consultation with the patient, determines it to be
medically necessary--
``(i) restrict benefits for any hospital
length of stay in connection with a mastectomy
or breast conserving surgery (such as a
lumpectomy) for the treatment of breast cancer
to less than 48 hours; or
``(ii) restrict benefits for any hospital
length of stay in connection with a lymph node
dissection for the treatment of breast cancer
to less than 24 hours; or
``(B) require that a provider obtain authorization
from the plan or the issuer for prescribing any length
of stay required under this paragraph.
``(2) Exception.--Nothing in this section shall be construed
as requiring the provision of inpatient coverage if the
attending physician, in consultation with the patient,
determines that either a shorter period of hospital stay, or
outpatient treatment, is medically appropriate.
``(b) Prohibition on Certain Modifications.--In implementing the
requirements of this section, a group health plan, and a health
insurance issuer providing health insurance coverage in connection with
a group health plan, may not modify the terms and conditions of
coverage based on the determination by a participant or beneficiary to
request less than the minimum coverage required under subsection (a).
``(c) Notice.--A group health plan, and a health insurance issuer
providing health insurance coverage in connection with a group health
plan shall provide notice to each participant and beneficiary under
such plan regarding the coverage required by this section in accordance
with regulations promulgated by the Secretary. Such notice shall be in
writing and prominently positioned in any literature or correspondence
made available or distributed by the plan or issuer and shall be
transmitted--
``(1) in the next mailing made by the plan or issuer to the
participant or beneficiary; or
``(2) as part of any yearly informational packet sent to the
participant or beneficiary;
whichever is earlier.
``(d) Secondary Consultations.--
``(1) In general.--A group health plan, and a health
insurance issuer providing health insurance coverage in
connection with a group health plan that provides coverage with
respect to medical and surgical services provided in relation
to the diagnosis and treatment of cancer shall ensure that full
coverage is provided for secondary consultations by specialists
in the appropriate medical fields (including pathology,
radiology, and oncology) to confirm or refute such diagnosis.
Such plan or issuer shall ensure that full coverage is provided
for such secondary consultation whether such consultation is
based on a positive or negative initial diagnosis. In any case
in which the attending physician certifies in writing that
services necessary for such a secondary consultation are not
sufficiently available from specialists operating under the
plan with respect to whose services coverage is otherwise
provided under such plan or by such issuer, such plan or issuer
shall ensure that coverage is provided with respect to the
services necessary for the secondary consultation with any
other specialist selected by the attending physician for such
purpose at no additional cost to the individual beyond that
which the individual would have paid if the specialist was
participating in the network of the plan.
``(2) Exception.--Nothing in paragraph (1) shall be construed
as requiring the provision of secondary consultations where the
patient determines not to seek such a consultation.
``(e) Prohibition on Penalties or Incentives.--A group health plan,
and a health insurance issuer providing health insurance coverage in
connection with a group health plan, may not--
``(1) penalize or otherwise reduce or limit the reimbursement
of a provider or specialist because the provider or specialist
provided care to a participant or beneficiary in accordance
with this section;
``(2) provide financial or other incentives to a physician or
specialist to induce the physician or specialist to keep the
length of inpatient stays of patients following a mastectomy,
lumpectomy, or a lymph node dissection for the treatment of
breast cancer below certain limits or to limit referrals for
secondary consultations;
``(3) provide financial or other incentives to a physician or
specialist to induce the physician or specialist to refrain
from referring a participant or beneficiary for a secondary
consultation that would otherwise be covered by the plan or
coverage involved under subsection (d); or
``(4) deny to a woman eligibility, or continued eligibility,
to enroll or to renew coverage under the terms of the plan or
coverage solely for the purpose of avoiding the requirements of
this section.''.
(b) Effective Dates.--
(1) In general.--The amendments made by this section shall
apply to group health plans for plan years beginning on or
after 90 days after the date of enactment of this Act.
(2) Special rule for collective bargaining agreements.--In
the case of a group health plan maintained pursuant to 1 or
more collective bargaining agreements between employee
representatives and 1 or more employers ratified before the
date of enactment of this Act, the amendments made by this
section shall not apply to plan years beginning before the date
on which the last collective bargaining agreements relating to
the plan terminates (determined without regard to any extension
thereof agreed to after the date of enactment of this Act). For
purposes of this paragraph, any plan amendment made pursuant to
a collective bargaining agreement relating to the plan which
amends the plan solely to conform to any requirement added by
this section shall not be treated as a termination of such
collective bargaining agreement.
SEC. 5. AMENDMENT TO THE PUBLIC HEALTH SERVICE ACT RELATING TO THE
INDIVIDUAL MARKET.
(a) In General.--The first subpart 3 of part B of title XXVII of the
Public Health Service Act (42 U.S.C. 300gg-11 et seq.) is amended--
(1) by adding after section 2752 the following:
``SEC. 2753. REQUIRED COVERAGE FOR MINIMUM HOSPITAL STAY FOR
MASTECTOMIES, LUMPECTOMIES, AND LYMPH NODE
DISSECTIONS FOR THE TREATMENT OF BREAST CANCER AND
SECONDARY CONSULTATIONS.
``The provisions of section 2707 shall apply to health insurance
coverage offered by a health insurance issuer in the individual market
in the same manner as they apply to health insurance coverage offered
by a health insurance issuer in connection with a group health plan in
the small or large group market.''; and
(2) by redesignating such subpart 3 as subpart 2.
(b) Effective Date.--The amendment made by this section shall apply
with respect to health insurance coverage offered, sold, issued,
renewed, in effect, or operated in the individual market on or after
the date of enactment of this Act.
SEC. 6. AMENDMENTS TO THE INTERNAL REVENUE CODE OF 1986.
(a) In General.--Subchapter B of chapter 100 of the Internal Revenue
Code of 1986 is amended--
(1) in the table of sections, by inserting after the item
relating to section 9812 the following:
``Sec. 9813. Required coverage for minimum hospital stay for
mastectomies, lumpectomies, and lymph node dissections for the
treatment of breast cancer and coverage for secondary consultations.'';
and
(2) by inserting after section 9812 the following:
``SEC. 9813. REQUIRED COVERAGE FOR MINIMUM HOSPITAL STAY FOR
MASTECTOMIES, LUMPECTOMIES, AND LYMPH NODE
DISSECTIONS FOR THE TREATMENT OF BREAST CANCER AND
COVERAGE FOR SECONDARY CONSULTATIONS.
``(a) Inpatient Care.--
``(1) In general.--A group health plan that provides medical
and surgical benefits shall ensure that inpatient (and in the
case of a lumpectomy, outpatient) coverage and radiation
therapy is provided for breast cancer treatment. Such plan may
not--
``(A) except as provided for in paragraph (2)--
``(i) restrict benefits for any hospital
length of stay in connection with a mastectomy
or breast conserving surgery (such as a
lumpectomy) for the treatment of breast cancer
to less than 48 hours; or
``(ii) restrict benefits for any hospital
length of stay in connection with a lymph node
dissection for the treatment of breast cancer
to less than 24 hours; or
``(B) require that a provider obtain authorization
from the plan for prescribing any length of stay
required under subparagraph (A) (without regard to
paragraph (2)).
``(2) Exception.--Nothing in this section shall be construed
as requiring the provision of inpatient coverage if the
attending physician and patient determine that either a shorter
period of hospital stay, or outpatient treatment, is medically
appropriate.
``(b) Prohibition on Certain Modifications.--In implementing the
requirements of this section, a group health plan may not modify the
terms and conditions of coverage based on the determination by a
participant or beneficiary to request less than the minimum coverage
required under subsection (a).
``(c) Notice.--A group health plan shall provide notice to each
participant and beneficiary under such plan regarding the coverage
required by this section in accordance with regulations promulgated by
the Secretary. Such notice shall be in writing and prominently
positioned in any literature or correspondence made available or
distributed by the plan and shall be transmitted--
``(1) in the next mailing made by the plan to the participant
or beneficiary; or
``(2) as part of any yearly informational packet sent to the
participant or beneficiary;
whichever is earlier.
``(d) Secondary Consultations.--
``(1) In general.--A group health plan that provides coverage
with respect to medical and surgical services provided in
relation to the diagnosis and treatment of cancer shall ensure
that full coverage is provided for secondary consultations by
specialists in the appropriate medical fields (including
pathology, radiology, and oncology) to confirm or refute such
diagnosis. Such plan or issuer shall ensure that full coverage
is provided for such secondary consultation whether such
consultation is based on a positive or negative initial
diagnosis. In any case in which the attending physician
certifies in writing that services necessary for such a
secondary consultation are not sufficiently available from
specialists operating under the plan with respect to whose
services coverage is otherwise provided under such plan or by
such issuer, such plan or issuer shall ensure that coverage is
provided with respect to the services necessary for the
secondary consultation with any other specialist selected by
the attending physician for such purpose at no additional cost
to the individual beyond that which the individual would have
paid if the specialist was participating in the network of the
plan.
``(2) Exception.--Nothing in paragraph (1) shall be construed
as requiring the provision of secondary consultations where the
patient determines not to seek such a consultation.
``(e) Prohibition on Penalties.--A group health plan may not--
``(1) penalize or otherwise reduce or limit the reimbursement
of a provider or specialist because the provider or specialist
provided care to a participant or beneficiary in accordance
with this section;
``(2) provide financial or other incentives to a physician or
specialist to induce the physician or specialist to keep the
length of inpatient stays of patients following a mastectomy,
lumpectomy, or a lymph node dissection for the treatment of
breast cancer below certain limits or to limit referrals for
secondary consultations;
``(3) provide financial or other incentives to a physician or
specialist to induce the physician or specialist to refrain
from referring a participant or beneficiary for a secondary
consultation that would otherwise be covered by the plan
involved under subsection (d); or
``(4) deny to a woman eligibility, or continued eligibility,
to enroll or to renew coverage under the terms of the plan
solely for the purpose of avoiding the requirements of this
section.''.
(b) Clerical Amendment.--The table of contents for chapter 100 of
such Code is amended by inserting after the item relating to section
9812 the following:
``Sec. 9813. Required coverage for minimum hospital stay for
mastectomies, lumpectomies, and lymph node dissections for the
treatment of breast cancer and coverage for secondary consultations.''.
(c) Effective Dates.--
(1) In general.--The amendments made by this section shall
apply with respect to plan years beginning on or after the date
of enactment of this Act.
(2) Special rule for collective bargaining agreements.--In
the case of a group health plan maintained pursuant to 1 or
more collective bargaining agreements between employee
representatives and 1 or more employers ratified before the
date of enactment of this Act, the amendments made by this
section shall not apply to plan years beginning before the date
on which the last collective bargaining agreements relating to
the plan terminates (determined without regard to any extension
thereof agreed to after the date of enactment of this Act). For
purposes of this paragraph, any plan amendment made pursuant to
a collective bargaining agreement relating to the plan which
amends the plan solely to conform to any requirement added by
this section shall not be treated as a termination of such
collective bargaining agreement.
SEC. 7. OPPORTUNITY FOR INDEPENDENT, EXTERNAL THIRD PARTY REVIEWS OF
CERTAIN NONRENEWALS AND DISCONTINUATIONS, INCLUDING
RESCISSIONS, OF INDIVIDUAL HEALTH INSURANCE
COVERAGE.
(a) Clarification Regarding Application of Guaranteed Renewability of
Individual Health Insurance Coverage.--Section 2742 of the Public
Health Service Act (42 U.S.C. 300gg-42) is amended--
(1) in its heading, by inserting ``, CONTINUATION IN FORCE,
INCLUDING PROHIBITION OF RESCISSION,'' after ``GUARANTEED
RENEWABILITY'';
(2) in subsection (a), by inserting ``, including without
rescission,'' after ``continue in force''; and
(3) in subsection (b)(2), by inserting before the period at
the end the following: ``, including intentional concealment of
material facts regarding a health condition related to the
condition for which coverage is being claimed''.
(b) Opportunity for Independent, External Third Party Review in
Certain Cases.--Subpart 1 of part B of title XXVII of the Public Health
Service Act is amended by adding at the end the following new section:
``SEC. 2746. OPPORTUNITY FOR INDEPENDENT, EXTERNAL THIRD PARTY REVIEW
IN CERTAIN CASES.
``(a) Notice and Review Right.--If a health insurance issuer
determines to nonrenew or not continue in force, including rescind,
health insurance coverage for an individual in the individual market on
the basis described in section 2742(b)(2) before such nonrenewal,
discontinuation, or rescission, may take effect the issuer shall
provide the individual with notice of such proposed nonrenewal,
discontinuation, or rescission and an opportunity for a review of such
determination by an independent, external third party under procedures
specified by the Secretary.
``(b) Independent Determination.--If the individual requests such
review by an independent, external third party of a nonrenewal,
discontinuation, or rescission of health insurance coverage, the
coverage shall remain in effect until such third party determines that
the coverage may be nonrenewed, discontinued, or rescinded under
section 2742(b)(2).''.
(c) Effective Date.--The amendments made by this section shall apply
after the date of the enactment of this Act with respect to health
insurance coverage issued before, on, or after such date.
Purpose and Summary
The purpose of H.R. 758, the Breast Cancer Patient
Protection Act of 2007, is to guarantee that health insurers
provide adequate coverage of hospital stays for persons
undergoing mastectomies and other procedures related to breast
cancer. It also provides additional protections to individuals
whose insurer fails to renew, discontinues, or rescinds his or
her policy. The bill amends the Employee Retirement Income
Security Act of 1974 (ERISA), the Public Health Service Act
(PHSA), and the Internal Revenue Code of 1986 (IRC) to prohibit
health insurers from limiting benefits for mastectomies and
breast conserving procedures to hospital stays of less than 48
hours; from limiting benefits for lymph node dissections for
the treatment of breast cancer to hospital stays of less than
24 hours; and, from providing inducements or penalties to
physicians to encourage the provision of benefits below those
minimum amounts. The bill requires health insurers to provide
access to secondary consultations to confirm or refute any
initial diagnosis regarding breast cancer and requires
disclosure of these provisions to plan participants.
In addition, the bill creates an independent review process
for consumers in the individual health insurance market in the
event of non-renewal, discontinuation, or rescission of a
health insurance policy. Insurers would be required to continue
coverage under such policy until completion of the independent
review.
Background and Need for Legislation
In general, regulation of group health plans and health
insurance issuers providing health insurance coverage in
connection with a group health plan occurs at the State level.
All insurers are also subject to minimum protections provided
by the Health Insurance Portability and Accountability Act of
1996 (HIPAA). Neither HIPAA nor the Employee Retirement Income
Security Act of 1974 (ERISA) provide for guaranteed coverage of
breast cancer treatment as specified in H.R. 758. Twenty States
require minimum lengths of stay of some duration following
mastectomies, while 30 States and the District of Columbia do
not.\1\ As a result, many people in the United States enroll in
health insurance plans that are not required by law to provide
adequate benefits to patients following invasive surgeries such
as mastectomies, lumpectomies, and other procedures.
---------------------------------------------------------------------------
\1\ Kaiser State Health Facts. http://www.statehealthfacts.org/
comparemaptable.jsp?ind=489&cat=7.
---------------------------------------------------------------------------
The Health Care Financing Administration in 1997 prohibited
Medicare managed-care plans from setting maximum lengths of
stay for mastectomies.\2\ Similar instructions were given to
Medicare's fee-for-service providers via the program's carriers
and fiscal intermediaries.\3\
---------------------------------------------------------------------------
\2\ Operational Policy Letter No. 49, Office of Managed Care,
OPL97.049 Feb. 12, 1997.
\3\ Hearing of the Committee on Labor and Human Resources, U.S.
Senate, March 6, 1997, p. 21-22.
---------------------------------------------------------------------------
There is evidence that this variation in regulatory regimes
affects the quality of care received by patients with breast
cancer. One study found that 21 percent of Medicare fee-for-
service patients aged 65-69 diagnosed with early-stage breast
cancer had an outpatient mastectomy between the years 1998-
2002, and found that ``outpatient mastectomy, which could lower
use of breast reconstruction, may raise concerns about whether
patients receive adequate post-mastectomy care.'' \4\ Another
study found that ``women with Medicare, Medicaid, or private
commercial insurance were less likely to receive an outpatient
mastectomy compared to women with an HMO payer.'' Additionally,
the study found that State regulation affects the clinical
level of care. Although clinical characteristics remain
important, the State in which a woman receives care and whether
she has an HMO payer are strong determinants of whether she
receives an outpatient mastectomy.\5\
---------------------------------------------------------------------------
\4\ Bian, Krontiras, and Jeroan Allison, ``Outpatient Mastectomy
and Breast Reconstructive Surgery'' Annals of Surgical Oncology
15:1032-1039, 2008.
\5\ Case, Johantgen, and Steiner, ``Outpatient Mastectomy:
Clinical, Payer, and Geographic Influences.'' Health Services Research,
October 2001.
---------------------------------------------------------------------------
Numerous patient testimonials confirm the need for Federal
legislation to guarantee minimum and adequate benefits for
patients with breast cancer. At a May 21, 2008, hearing before
the Subcommittee on Health of the Committee on Energy and
Commerce, breast cancer patient Alva Williams testified that
she had a mastectomy on March 6, 2006, and was sent home
several hours after surgery. At the same hearing, Dr. Kristen
Zarfos, a breast surgeon from Connecticut, testified that only
six weeks prior to the hearing, she had been called by a woman
in New Hampshire who was told she would have to go home a few
hours after her surgery, despite being partially paralyzed and
on blood thinning medication for blood clots. An online
petition hosted by the television network Lifetime collected 20
million signatures in support of the legislation and numerous
personal stories demonstrating its importance.
LEGISLATIVE AND EXECUTIVE HISTORY
Bills in the 104th-109th Congress.--The ``Breast Cancer
Patient Protection Act'' was introduced in the 104th (H.R.
4296), 105th (H.R. 135), 106th (H.R. 116), 107th (H.R. 536),
108th (H.R. 1886), and 109th (H.R. 1849) Congress. The
companion legislation before the Senate in the 110th Congress
is S. 459. Companion legislation was introduced in the Senate
in the 105th (S. 143), 106th (S. 681), 108th (S. 1684), and
109th (S. 910) Congress. Bills introduced prior to the 109th
Congress only amended the Public Health Service Act and the
Employee Retirement Income Security Act of 1974.
After the 109th Congress the introduced bills also applied
the required benefits to the Internal Revenue Code of 1986,
including H.R. 758, introduced during the 110th Congress. Each
of these prior bills differs from H.R. 758, as amended, by the
inclusion in H.R. 758 of additional protections relating to the
individual health insurance market.
Patients' Bill of Rights.--H.R. 2563, passed by the House
of Representatives in the 107th Congress, included a provision
requiring health insurers to provide inpatient coverage for
care following a mastectomy, lumpectomy, or lymph node
dissection for the treatment of breast cancer that is
``medically necessary and appropriate'' as determined by the
attending physician, in consultation with the patient. It did
not stipulate a minimum length of stay required to be covered
by such an insurance plan. H.R. 2563 also required health
insurers to provide coverage for a secondary consultation and
prohibited certain inducements to attending physicians. The
Senate-passed bill (S. 1052) provided the same protections, as
did S. 1334, the Patients' Bill of Rights Plus Act, passed by
the Senate in the 106th Congress. H.R. 3605, the Patients' Bill
of Rights Act of 1998, passed by the House in the 105th
Congress, provided the same minimum length of stay guarantees
to patients undergoing mastectomies and lymph node dissections
for the treatment of breast cancer as are provided in H.R. 758.
S. 2330, the Patients' Bill of Rights Act, passed by the Senate
in the 105th Congress, required insurers to cover lengths of
stay as determined to be medically appropriate.
Administrative Actions.--The Health Care Financing
Administration in 1997 prohibited Medicare managed care plans
from setting maximum lengths of stay for mastectomies.\6\
Similar instructions were given to fee-for-service providers
via Medicare's carriers and fiscal intermediaries.\7\
---------------------------------------------------------------------------
\6\ Operational Policy Letter No. 49, Office of Managed Care,
OPL97.049 Feb. 12, 1997.
\7\ Hearing of the Committee on Labor and Human Resources, U.S.
Senate, March 6, 1997, p. 21-22.
---------------------------------------------------------------------------
State Legislation.--Twenty States have laws providing some
guarantee of minimum hospital stays following mastectomies and
other procedures to treat breast cancer.\8\
---------------------------------------------------------------------------
\8\ Kaiser State Health Facts. http://www.statehealthfacts.org/
comparemaptable.jsp?ind=489&cat=7.
---------------------------------------------------------------------------
Hearings
On May 21, 2008, the Subcommittee on Health held a hearing
on H.R. 758 and H.R. 1157, the Breast Cancer and Environmental
Research Act of 2007. The witnesses included Dr. Deborah Winn,
Associate Director of the National Cancer Institute's
Epidemiology and Genetics Research Program; Ms. Fran Visco,
President of the National Breast Cancer Coalition; Ms. Sheryl
Crow, Singer, Songwriter, and Breast Cancer Advocate; Dr. Kim
Lyerly, George Barth Geller Professor of Research in Cancer and
Director of the Duke Comprehensive Cancer Center; Dr. Kristen
Zarfos, Assistant Clinical Professor at the University of
Connecticut School of Medicine and Director of the St. Francis
Comprehensive Breast Health Center; and Ms. Alva Williams, a
breast cancer patient.
Committee Consideration
On Wednesday, September 17, 2008, the full Committee met in
open markup session and ordered H.R. 758 favorably reported to
the House, amended, by a voice vote.
Committee Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the record votes
on the motion to report legislation and amendments thereto. No
record votes were taken on amendments or in connection with
ordering H.R. 758 reported to the House. A motion by Mr.
Dingell to order H.R. 758 favorably reported to the House,
amended, was agreed to by a voice vote.
Committee Oversight Findings
Regarding clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Subcommittee on Health held a
legislative hearing on H.R. 758, and the oversight findings of
the Committee regarding the bill are reflected in this report.
Statement of General Performance Goals and Objectives
The purpose of H.R. 758 is to guarantee that health
insurers provide adequate coverage of hospital stays for
persons undergoing mastectomies and other procedures related to
breast cancer and to provide additional protections to
individuals in the individual health insurance market from non-
renewal, discontinuation, and rescission of their policies.
New Budget Authority, Entitlement Authority, and Tax Expenditures
Regarding compliance with clause 3(c)(2) of rule XIII of
the Rules of the House of Representatives, the Committee finds
that H.R. 758 would result in no new or increased budget
authority, entitlement authority, or tax expenditures or
revenues.
Earmarks and Tax and Tariff Benefits
Regarding compliance with clause 9 of rule XXI of the Rules
of the House of Representatives, H.R. 758 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of rule XXI.
Committee Cost Estimate
The Committee adopts as its own the cost estimate on H.R.
758 prepared by the Director of the Congressional Budget Office
pursuant to section 402 of the Congressional Budget Act of
1974.
Congressional Budget Office Estimate
Pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives, the following is the cost estimate on
H.R. 758 provided by the Congressional Budget Office pursuant
to section 402 of the Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 22, 2008.
Hon. John D. Dingell,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 758, the Breast
Cancer Protection Act of 2007.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Robert
Stewart.
Sincerely,
Robert A. Sunshine
(For Peter R. Orszag, Director).
Enclosure.
H.R. 758--Breast Cancer Protection Act of 2007
H.R. 758 would require group health plans and health
insurance issuers providing coverage in the group and non-group
markets to ensure that inpatient coverage, outpatient coverage
of lumpectomies, and radiation therapy are provided for breast
cancer treatment. Group health plans and health insurance
issuers would not be able to restrict benefits for any hospital
length of stay related to mastectomies, lumpectomies, and other
breast-conserving surgeries for the treatment of breast cancer
to less than 48 hours. In addition, H.R. 758 would place the
following requirements on group health plans and health
insurance issuers:
Group health plans and issuers would not be
able to restrict benefits for any hospital length of
stay related to lymph node dissections to less than 24
hours;
Providers would not be required to get
authorization from the plan to prescribe any length of
stay that is within the requirements of H.R. 758;
Group health plans and issuers would be
required to notify their enrollees of this new
coverage;
Group health plans and issuers would also be
required to offer full coverage for a secondary
consultation by a specialist; and
Group health plans and issuers would have to
notify individuals before the non-renewal or
discontinuation of coverage on the basis of fraud and
provide an opportunity for review of such determination
by an independent external third party under procedures
determined by the Secretary of Health and Human
Services.
CBO estimates that H.R. 758 would have no significant
impact on federal spending or revenues.
H.R. 758 would impose private-sector mandates as defined in
the Unfunded Mandates Reform Act (UMRA). However, CBO estimates
that the costs of complying with the new requirements would not
exceed the threshold established in UMRA ($136 million in 2008,
adjusted annually for inflation).
H.R. 758 would not impose an intergovernmental mandate as
defined in the UMRA. An existing provision in the Public Health
Service Act would allow state, local, and tribal governments,
as employers that provide health benefits to their employees,
to opt out of the requirements of this bill. Consequently, the
requirements in the bill that establish minimum standards for
providing consultation services and treatment benefits for
individuals with breast cancer would not be intergovernmental
mandates as defined in UMRA. The bill would affect the budgets
of those governments only if they choose to comply with the
requirements on group health plans.
The CBO staff contacts for this estimate are Robert Stewart
(for federal costs), and Keisuke Nakagawa (for the private-
sector impact). This estimate was approved by Keith J.
Fontenot, Deputy Assistant Director for Health and Human
Services, Budget Analysis Division.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates regarding H.R. 758 prepared by the Director of the
Congressional Budget Office pursuant to section 423 of the
Unfunded Mandates Reform Act.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act would be created by H.R.
758.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds that the
Constitutional authority for H.R. 758 is provided in Article I,
section 8, clause 3, which grants Congress the power to
regulate commerce with foreign nations, among the several
States, and with the Indian Tribes, and in the provisions of
Article I, section 8, clause 1, that relate to expending funds
to provide for the general welfare of the United States.
Applicability to Legislative Branch
The Committee finds that H.R. 758 does not relate to the
terms and conditions of employment or access to public services
or accommodations within the meaning of section 102(b)(3) of
the Congressional Accountability Act of 1995.
Section-by-Section Analysis of the Legislation
Section 1. Short title
Section 1 establishes the short title of H.R. 758 as the
Breast Cancer Patient Protection Act of 2008.
Section 2. Findings
Section 2 incorporates findings relating to breast cancer
coverage in health insurance.
Section 3. Amendments to the Employee Retirement Income Security Act of
1974
Section 3 amends the Employee Retirement Income Security
Act of 1974 relating to the group market. This section is not
within the jurisdiction of the Committee.
Section 4. Amendments to the Public Health Service Act relating to the
group market
Section 4 amends the Public Health Service Act with respect
to group health plans and health insurance issuers providing
health insurance coverage in connection with a group health
plan that provide medical and surgical benefits.
(a) In general
The amendment made by subsection (a) requires such plans to
provide certain coverage to breast cancer patients. Plans are
to cover inpatient coverage (and in the case of a lumpectomy,
outpatient coverage), and radiation therapy for breast cancer
treatment. If determined to be medically necessary by the
attending physician, in consultation with the patient, the
section prohibits health plans from restricting hospital stays
for mastectomy or breast-conserving surgery to less than 48
hours, or restricting hospital stays for lymph node dissection
to less than 24 hours. The bill does not require patients to
stay for the duration of the minimum lengths of stay if he or
she chooses not to. The section prohibits health plans from
requiring that a provider obtain authorization from the plan or
the issuer for prescribing such lengths of stay.
H.R. 758 prohibits health plans from modifying the terms
and conditions of coverage in the event that a patient chooses
to obtain less than the minimum coverage required under this
section. It also requires health plans to provide written and
clear notice to each covered participant and beneficiary of the
protections provided by the bill.
The bill requires coverage of a second opinion for breast
cancer diagnosis regardless of the initial diagnosis. It
assures that the terms and conditions under which a patient
receives a second opinion are no more restrictive than those
applicable to the initial consultations. If a physician
certifies in writing that specialists currently operating
within the patient's health plan cannot provide the necessary
second opinion, this legislation will ensure that patients are
allowed to obtain a second opinion from an out-of-network
specialist at no additional cost beyond what the patient would
have paid in-network.
H.R. 758 prohibits health plans from financially penalizing
a physician or specialist for providing the minimum care
required in this section to a patient. It also precludes health
plans from providing financial or other incentives to a
physician or specialist to keep the length of hospital stay
below the standards prescribed by this section or to limit
referrals for second opinions.
(b) Effective dates
Subsection (b) provides that the requirements of this
section take effect with respect to health plan years beginning
90 or more days after the date of enactment. For health plans
covered by collective bargaining agreements the effective date
is the start of the next collective bargaining agreement
relating to the health plan (beginning 90 days after
enactment). It allows for amendment of health plans agreed to
by collective bargaining to include the requirements of this
section without such collective bargaining agreement being
considered terminated.
Section 5. Amendment to the Public Health Service Act relating to the
individual market
Section 5 amends the Public Health Service Act with respect
to individual health plans.
(a) In general
The amendment made by subsection (a) requires that health
plans in the individual market provide coverage according to
this section in the same manner as group health plans in the
group market.
(b) Effective dates
Subsection (b) provides for the applicability of the
amendments with respect to health insurance coverage offered,
sold, issued, renewed, in effect, or operated in the individual
market on or after the date of enactment of this Act.
Section 6. Amendments to the Internal Revenue Code of 1986
Section 6 amends the Internal Revenue Code of 1986. This
section is not within the jurisdiction of the Committee.
Section 7. Opportunity for independent, external third party reviews of
certain non-renewals and discontinuations, including
rescissions, of individual health insurance coverage
(a) Clarification regarding application of guaranteed
renewability of individual health coverage
Subsection (a) amends section 2742(a) of the Public Health
Service Act to provide that, except as provided in section
2742, a health insurance issuer that provides individual health
insurance coverage to an individual shall renew or continue in
force, including without rescission, such coverage at the
option of the individual.
In addition, subsection (a) amends section 2742(b) to
provide that if the individual has performed an act or practice
that constitutes fraud or made an intentional misrepresentation
of material fact under the terms of the coverage, including the
intentional concealment of material facts regarding a health
condition related to the condition for which coverage is being
claimed, coverage may be non-renewed or not continued in force,
including rescinded.
Subsection (a) also amends the heading of section 2742 to
read ``Guaranteed Renewability, Continuation in Force,
Including Prohibition of Rescission, of Individual Health
Insurance Coverage''.
(b) Opportunity for independent, external third party
review in certain cases
Subsection (b) adds a new section 2746 to the Public Health
Service Act to specify that, before a nonrenewal,
discontinuation of coverage, or rescission of coverage in the
individual insurance market can take effect, the insurer shall
provide the individual with an opportunity for independent,
external third party review. If an individual requests such
review, the coverage shall remain in effect until the
independent, external third party determines that the coverage
may be non-renewed, discontinued, or rescinded under Section
2742(b)(2), which specifies the fraud exclusion in guaranteed
renewability and continuation in force, including prohibition
of rescission.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974
SHORT TITLE AND TABLE OF CONTENTS
Section 1. This Act may be cited as the ``Employee Retirement
Income Security Act of 1974''.
TABLE OF CONTENTS
Sec. 1. Short title and table of contents.
TITLE I--PROTECTION OF EMPLOYEE BENEFIT RIGHTS
* * * * * * *
Part 7--Group Health Plan Requirements
* * * * * * *
Subpart B--Other Requirements
* * * * * * *
Sec. 714. Required coverage for minimum hospital stay for mastectomies,
lumpectomies, and lymph node dissections for the treatment of
breast cancer and coverage for secondary consultations.
* * * * * * *
TITLE I--PROTECTION OF EMPLOYEE BENEFIT RIGHTS
* * * * * * *
PART 7--GROUP HEALTH PLAN REQUIREMENTS
* * * * * * *
Subtitle B--Other Requirements
* * * * * * *
SEC. 714. REQUIRED COVERAGE FOR MINIMUM HOSPITAL STAY FOR MASTECTOMIES,
LUMPECTOMIES, AND LYMPH NODE DISSECTIONS FOR THE
TREATMENT OF BREAST CANCER AND COVERAGE FOR
SECONDARY CONSULTATIONS.
(a) Inpatient Care.--
(1) In general.--A group health plan, and a health
insurance issuer providing health insurance coverage in
connection with a group health plan, that provides
medical and surgical benefits shall ensure that
inpatient (and in the case of a lumpectomy, outpatient)
coverage and radiation therapy is provided for breast
cancer treatment. Such plan or coverage may not--
(A) except as provided for in paragraph (2)--
(i) restrict benefits for any
hospital length of stay in connection
with a mastectomy or breast conserving
surgery (such as a lumpectomy) for the
treatment of breast cancer to less than
48 hours; or
(ii) restrict benefits for any
hospital length of stay in connection
with a lymph node dissection for the
treatment of breast cancer to less than
24 hours; or
(B) require that a provider obtain
authorization from the plan or the issuer for
prescribing any length of stay required under
subparagraph (A) (without regard to paragraph
(2)).
(2) Exception.--Nothing in this section shall be
construed as requiring the provision of inpatient
coverage if the attending physician and patient
determine that either a shorter period of hospital
stay, or outpatient treatment, is medically
appropriate.
(b) Prohibition on Certain Modifications.--In implementing
the requirements of this section, a group health plan, and a
health insurance issuer providing health insurance coverage in
connection with a group health plan, may not modify the terms
and conditions of coverage based on the determination by a
participant or beneficiary to request less than the minimum
coverage required under subsection (a).
(c) Notice.--A group health plan, and a health insurance
issuer providing health insurance coverage in connection with a
group health plan shall provide notice to each participant and
beneficiary under such plan regarding the coverage required by
this section in accordance with regulations promulgated by the
Secretary. Such notice shall be in writing and prominently
positioned in any literature or correspondence made available
or distributed by the plan or issuer and shall be transmitted--
(1) in the next mailing made by the plan or issuer to
the participant or beneficiary; or
(2) as part of any yearly informational packet sent
to the participant or beneficiary;
whichever is earlier.
(d) Secondary Consultations.--
(1) In general.--A group health plan, and a health
insurance issuer providing health insurance coverage in
connection with a group health plan, that provides
coverage with respect to medical and surgical services
provided in relation to the diagnosis and treatment of
cancer shall ensure that full coverage is provided for
secondary consultations by specialists in the
appropriate medical fields (including pathology,
radiology, and oncology) to confirm or refute such
diagnosis. Such plan or issuer shall ensure that full
coverage is provided for such secondary consultation
whether such consultation is based on a positive or
negative initial diagnosis. In any case in which the
attending physician certifies in writing that services
necessary for such a secondary consultation are not
sufficiently available from specialists operating under
the plan with respect to whose services coverage is
otherwise provided under such plan or by such issuer,
such plan or issuer shall ensure that coverage is
provided with respect to the services necessary for the
secondary consultation with any other specialist
selected by the attending physician for such purpose at
no additional cost to the individual beyond that which
the individual would have paid if the specialist was
participating in the network of the plan.
(2) Exception.--Nothing in paragraph (1) shall be
construed as requiring the provision of secondary
consultations where the patient determines not to seek
such a consultation.
(e) Prohibition on Penalties or Incentives.--A group health
plan, and a health insurance issuer providing health insurance
coverage in connection with a group health plan, may not--
(1) penalize or otherwise reduce or limit the
reimbursement of a provider or specialist because the
provider or specialist provided care to a participant
or beneficiary in accordance with this section;
(2) provide financial or other incentives to a
physician or specialist to induce the physician or
specialist to keep the length of inpatient stays of
patients following a mastectomy, lumpectomy, or a lymph
node dissection for the treatment of breast cancer
below certain limits or to limit referrals for
secondary consultations;
(3) provide financial or other incentives to a
physician or specialist to induce the physician or
specialist to refrain from referring a participant or
beneficiary for a secondary consultation that would
otherwise be covered by the plan or coverage involved
under subsection (d); or
(4) deny to a woman eligibility, or continued
eligibility, to enroll or to renew coverage under the
terms of the plan or coverage solely for the purpose of
avoiding the requirements of this section.
* * * * * * *
----------
PUBLIC HEALTH SERVICE ACT
* * * * * * *
TITLE XXVII--REQUIREMENTS RELATING TO HEALTH INSURANCE COVERAGE
Part A--Group Market Reforms
* * * * * * *
Subpart 2--Other Requirements
* * * * * * *
SEC. 2707. REQUIRED COVERAGE FOR MINIMUM HOSPITAL STAY FOR
MASTECTOMIES, LUMPECTOMIES, AND LYMPH NODE
DISSECTIONS FOR THE TREATMENT OF BREAST CANCER AND
COVERAGE FOR SECONDARY CONSULTATIONS.
(a) Inpatient Care.--
(1) In general.--A group health plan, and a health
insurance issuer providing health insurance coverage in
connection with a group health plan, that provides
medical and surgical benefits shall ensure that
inpatient (and in the case of a lumpectomy, outpatient)
coverage and radiation therapy is provided for breast
cancer treatment. Such plan or coverage may not--
(A) insofar as the attending physician, in
consultation with the patient, determines it to
be medically necessary--
(i) restrict benefits for any
hospital length of stay in connection
with a mastectomy or breast conserving
surgery (such as a lumpectomy) for the
treatment of breast cancer to less than
48 hours; or
(ii) restrict benefits for any
hospital length of stay in connection
with a lymph node dissection for the
treatment of breast cancer to less than
24 hours; or
(B) require that a provider obtain
authorization from the plan or the issuer for
prescribing any length of stay required under
this paragraph.
(2) Exception.--Nothing in this section shall be
construed as requiring the provision of inpatient
coverage if the attending physician, in consultation
with the patient, determines that either a shorter
period of hospital stay, or outpatient treatment, is
medically appropriate.
(b) Prohibition on Certain Modifications.--In implementing
the requirements of this section, a group health plan, and a
health insurance issuer providing health insurance coverage in
connection with a group health plan, may not modify the terms
and conditions of coverage based on the determination by a
participant or beneficiary to request less than the minimum
coverage required under subsection (a).
(c) Notice.--A group health plan, and a health insurance
issuer providing health insurance coverage in connection with a
group health plan shall provide notice to each participant and
beneficiary under such plan regarding the coverage required by
this section in accordance with regulations promulgated by the
Secretary. Such notice shall be in writing and prominently
positioned in any literature or correspondence made available
or distributed by the plan or issuer and shall be transmitted--
(1) in the next mailing made by the plan or issuer to
the participant or beneficiary; or
(2) as part of any yearly informational packet sent
to the participant or beneficiary;
whichever is earlier.
(d) Secondary Consultations.--
(1) In general.--A group health plan, and a health
insurance issuer providing health insurance coverage in
connection with a group health plan that provides
coverage with respect to medical and surgical services
provided in relation to the diagnosis and treatment of
cancer shall ensure that full coverage is provided for
secondary consultations by specialists in the
appropriate medical fields (including pathology,
radiology, and oncology) to confirm or refute such
diagnosis. Such plan or issuer shall ensure that full
coverage is provided for such secondary consultation
whether such consultation is based on a positive or
negative initial diagnosis. In any case in which the
attending physician certifies in writing that services
necessary for such a secondary consultation are not
sufficiently available from specialists operating under
the plan with respect to whose services coverage is
otherwise provided under such plan or by such issuer,
such plan or issuer shall ensure that coverage is
provided with respect to the services necessary for the
secondary consultation with any other specialist
selected by the attending physician for such purpose at
no additional cost to the individual beyond that which
the individual would have paid if the specialist was
participating in the network of the plan.
(2) Exception.--Nothing in paragraph (1) shall be
construed as requiring the provision of secondary
consultations where the patient determines not to seek
such a consultation.
(e) Prohibition on Penalties or Incentives.--A group health
plan, and a health insurance issuer providing health insurance
coverage in connection with a group health plan, may not--
(1) penalize or otherwise reduce or limit the
reimbursement of a provider or specialist because the
provider or specialist provided care to a participant
or beneficiary in accordance with this section;
(2) provide financial or other incentives to a
physician or specialist to induce the physician or
specialist to keep the length of inpatient stays of
patients following a mastectomy, lumpectomy, or a lymph
node dissection for the treatment of breast cancer
below certain limits or to limit referrals for
secondary consultations;
(3) provide financial or other incentives to a
physician or specialist to induce the physician or
specialist to refrain from referring a participant or
beneficiary for a secondary consultation that would
otherwise be covered by the plan or coverage involved
under subsection (d); or
(4) deny to a woman eligibility, or continued
eligibility, to enroll or to renew coverage under the
terms of the plan or coverage solely for the purpose of
avoiding the requirements of this section.
* * * * * * *
Part B--Individual Market Rules
Subpart 1--Portability, Access, and Renewability Requirements
* * * * * * *
SEC. 2742. GUARANTEED RENEWABILITY, CONTINUATION IN FORCE, INCLUDING
PROHIBITION OF RESCISSION, OF INDIVIDUAL HEALTH
INSURANCE COVERAGE.
(a) In General.--Except as provided in this section, a health
insurance issuer that provides individual health insurance
coverage to an individual shall renew or continue in force,
including without rescission, such coverage at the option of
the individual.
(b) General Exceptions.--A health insurance issuer may
nonrenew or discontinue health insurance coverage of an
individual in the individual market based only on one or more
of the following:
(1) * * *
(2) Fraud.--The individual has performed an act or
practice that constitutes fraud or made an intentional
misrepresentation of material fact under the terms of
the coverage, including intentional concealment of
material facts regarding a health condition related to
the condition for which coverage is being claimed.
* * * * * * *
SEC. 2746. OPPORTUNITY FOR INDEPENDENT, EXTERNAL THIRD PARTY REVIEW IN
CERTAIN CASES.
(a) Notice and Review Right.--If a health insurance issuer
determines to nonrenew or not continue in force, including
rescind, health insurance coverage for an individual in the
individual market on the basis described in section 2742(b)(2)
before such nonrenewal, discontinuation, or rescission, may
take effect the issuer shall provide the individual with notice
of such proposed nonrenewal, discontinuation, or rescission and
an opportunity for a review of such determination by an
independent, external third party under procedures specified by
the Secretary.
(b) Independent Determination.--If the individual requests
such review by an independent, external third party of a
nonrenewal, discontinuation, or rescission of health insurance
coverage, the coverage shall remain in effect until such third
party determines that the coverage may be nonrenewed,
discontinued, or rescinded under section 2742(b)(2).
* * * * * * *
Subpart 2--Other Requirements
* * * * * * *
SEC. 2754. REQUIRED COVERAGE FOR MINIMUM HOSPITAL STAY FOR
MASTECTOMIES, LUMPECTOMIES, AND LYMPH NODE
DISSECTIONS FOR THE TREATMENT OF BREAST CANCER AND
SECONDARY CONSULTATIONS.
The provisions of section 2707 shall apply to health
insurance coverage offered by a health insurance issuer in the
individual market in the same manner as they apply to health
insurance coverage offered by a health insurance issuer in
connection with a group health plan in the small or large group
market.
* * * * * * *
----------
INTERNAL REVENUE CODE OF 1986
* * * * * * *
Subtitle K--Group Health Plan Requirements
* * * * * * *
CHAPTER 100--GROUP HEALTH PLAN REQUIREMENTS
* * * * * * *
SUBCHAPTER B--OTHER REQUIREMENTS
* * * * * * *
Sec. 9813. Required coverage for minimum hospital stay for mastectomies,
lumpectomies, and lymph node dissections for the treatment of
breast cancer and coverage for secondary consultations.
* * * * * * *
SEC. 9813. REQUIRED COVERAGE FOR MINIMUM HOSPITAL STAY FOR
MASTECTOMIES, LUMPECTOMIES, AND LYMPH NODE
DISSECTIONS FOR THE TREATMENT OF BREAST CANCER AND
COVERAGE FOR SECONDARY CONSULTATIONS.
(a) Inpatient Care.--
(1) In general.--A group health plan that provides
medical and surgical benefits shall ensure that
inpatient (and in the case of a lumpectomy, outpatient)
coverage and radiation therapy is provided for breast
cancer treatment. Such plan may not--
(A) except as provided for in paragraph (2)--
(i) restrict benefits for any
hospital length of stay in connection
with a mastectomy or breast conserving
surgery (such as a lumpectomy) for the
treatment of breast cancer to less than
48 hours; or
(ii) restrict benefits for any
hospital length of stay in connection
with a lymph node dissection for the
treatment of breast cancer to less than
24 hours; or
(B) require that a provider obtain
authorization from the plan for prescribing any
length of stay required under subparagraph (A)
(without regard to paragraph (2)).
(2) Exception.--Nothing in this section shall be
construed as requiring the provision of inpatient
coverage if the attending physician and patient
determine that either a shorter period of hospital
stay, or outpatient treatment, is medically
appropriate.
(b) Prohibition on Certain Modifications.--In implementing
the requirements of this section, a group health plan may not
modify the terms and conditions of coverage based on the
determination by a participant or beneficiary to request less
than the minimum coverage required under subsection (a).
(c) Notice.--A group health plan shall provide notice to each
participant and beneficiary under such plan regarding the
coverage required by this section in accordance with
regulations promulgated by the Secretary. Such notice shall be
in writing and prominently positioned in any literature or
correspondence made available or distributed by the plan and
shall be transmitted--
(1) in the next mailing made by the plan to the
participant or beneficiary; or
(2) as part of any yearly informational packet sent
to the participant or beneficiary;
whichever is earlier.
(d) Secondary Consultations.--
(1) In general.--A group health plan that provides
coverage with respect to medical and surgical services
provided in relation to the diagnosis and treatment of
cancer shall ensure that full coverage is provided for
secondary consultations by specialists in the
appropriate medical fields (including pathology,
radiology, and oncology) to confirm or refute such
diagnosis. Such plan or issuer shall ensure that full
coverage is provided for such secondary consultation
whether such consultation is based on a positive or
negative initial diagnosis. In any case in which the
attending physician certifies in writing that services
necessary for such a secondary consultation are not
sufficiently available from specialists operating under
the plan with respect to whose services coverage is
otherwise provided under such plan or by such issuer,
such plan or issuer shall ensure that coverage is
provided with respect to the services necessary for the
secondary consultation with any other specialist
selected by the attending physician for such purpose at
no additional cost to the individual beyond that which
the individual would have paid if the specialist was
participating in the network of the plan.
(2) Exception.--Nothing in paragraph (1) shall be
construed as requiring the provision of secondary
consultations where the patient determines not to seek
such a consultation.
(e) Prohibition on Penalties.--A group health plan may not--
(1) penalize or otherwise reduce or limit the
reimbursement of a provider or specialist because the
provider or specialist provided care to a participant
or beneficiary in accordance with this section;
(2) provide financial or other incentives to a
physician or specialist to induce the physician or
specialist to keep the length of inpatient stays of
patients following a mastectomy, lumpectomy, or a lymph
node dissection for the treatment of breast cancer
below certain limits or to limit referrals for
secondary consultations;
(3) provide financial or other incentives to a
physician or specialist to induce the physician or
specialist to refrain from referring a participant or
beneficiary for a secondary consultation that would
otherwise be covered by the plan involved under
subsection (d); or
(4) deny to a woman eligibility, or continued
eligibility, to enroll or to renew coverage under the
terms of the plan solely for the purpose of avoiding
the requirements of this section.
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