II 

116TH CONGRESS 

1ST SESSION S. 560 

To amend the Public Health Service Act, the Employee Retirement Income 

Security Act of 1974, and the Internal Revenue Code of 1986 to require 

that group and individual health insurance coverage and group health 

plans provide coverage for treatment of a congenital anomaly or birth 

defect. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 26, 2019 

Ms. BALDWIN (for herself, Ms. ERNST, Ms. MURKOWSKI, and Mr. BROWN) 

introduced the following bill; which was read twice and referred to the 

Committee on Health, Education, Labor, and Pensions 

A BILL 

To amend the Public Health Service Act, the Employee Retirement Income Security Act of 1974, and the Internal 

Revenue Code of 1986 to require that group and individual health insurance coverage and group health plans 

provide coverage for treatment of a congenital anomaly 

or birth defect. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Ensuring Lasting 

5 Smiles Act’’. 


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1 SEC. 2. COVERAGE OF CONGENITAL ANOMALY OR BIRTH 

2 DEFECT. 

3 (a) PUBLIC HEALTH SERVICE ACT AMENDMENTS.— 

4 (1) IN GENERAL.—Title XXVII of the Public 

5 Health Service Act is amended by inserting after 

6 section 2729 (42 U.S.C. 300gg–19b), the following: 

7 ‘‘SEC. 2730. STANDARDS RELATING TO BENEFITS FOR CON8 GENITAL ANOMALY OR BIRTH DEFECT. 

9 ‘‘(a) REQUIREMENTS FOR CARE AND RECONSTRUC10 TIVE TREATMENT.— 

11 ‘‘(1) IN GENERAL.—A group health plan, and a 

12 health insurance issuer offering group or individual 

13 health insurance coverage, shall provide coverage for 

14 outpatient and inpatient services related to the diag15 nosis and treatment of a congenital anomaly or birth 

16 defect. 

17 ‘‘(2) REQUIREMENTS.—Coverage provided 

18 under paragraph (1) shall include any service to 

19 functionally improve, repair, or restore any body 

20 part that is medically necessary to achieve normal 

21 body functioning or appearance, as determined by 

22 the treating physician (as defined in section 1861 of 

23 the Social Security Act). Any coverage provided 

24 under such paragraph may be subject to coverage 

25 limits, such as pre-authorization or pre-certification, 

26 as required by the plan or issuer that are no more 


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1 restrictive than the predominant treatment limita2 tions applied to substantially all medical and sur3 gical benefits covered by the plan (or coverage). 

4 ‘‘(3) TREATMENT DEFINED.— 

5 ‘‘(A) IN GENERAL.—Except as provided in 

6 subparagraph (B), in this section, the term 

7 ‘treatment’ includes patient and outpatient care 

8 and services performed to improve or restore 

9 body function (or performed to approximate a 

10 normal appearance), due to congenital anomaly 

11 or birth defect and shall include treatment to 

12 any and all missing or abnormal body parts, 

13 (including teeth, the oral cavity, and their asso14 ciated structures) that would otherwise be pro15 vided under the plan or coverage for any other 

16 injury and sickness, including— 

17 ‘‘(i) inpatient and outpatient care, re18 constructive services and procedures, and 

19 complications thereof, including prosthetics 

20 and appliances; 

21 ‘‘(ii) adjunctive dental, orthodontic or 

22 prosthodontic support from birth until the 

23 medical or surgical treatment of the defect 

24 or anomaly has been completed, including 

25 ongoing or subsequent treatment required 


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1 to maintain function or approximate a nor2 mal appearance; 

3 ‘‘(iii) procedures that do not materi4 ally restore or improve the function of the 

5 body part being treated; and 

6 ‘‘(iv) procedures for secondary condi7 tions and follow-up treatment. 

8 ‘‘(B) EXCEPTION.—The term ‘treatment’ 

9 shall not include cosmetic surgery performed to 

10 reshape normal structures of the body to im11 prove appearance or self-esteem. 

12 ‘‘(b) NOTICE.—A group health plan under this part 

13 shall comply with the notice requirement under section 

14 714(b) of the Employee Retirement Income Security Act 

15 of 1974 with respect to the requirements of this section 

16 as if such section applied to such plan.’’. 

17 (2) TECHNICAL AMENDMENTS.— 

18 (A) Section 2724(c) of the Public Health 

19 Service Act (42 U.S.C. 300gg–23(c)) is amend20 ed by striking ‘‘section 2704’’ and inserting 

21 ‘‘sections 2725 and 2730’’. 

22 (B) Section 2762(b)(2) of the Public 

23 Health Service Act (42 U.S.C. 300gg–62(b)(2)) 

24 is amended by striking ‘‘section 2751’’ and in25 serting ‘‘sections 2730 and 2751’’. 


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1 (b) ERISA AMENDMENTS.— 

2 (1) IN GENERAL.—Subpart B of part 7 of sub3 title B of title I of the Employee Retirement Income 

4 Security Act of 1974 is amended by adding at the 

5 end the following: 

6 ‘‘SEC. 716. STANDARDS RELATING TO BENEFITS FOR CON7 GENITAL ANOMALY OR BIRTH DEFECT. 

8 ‘‘(a) REQUIREMENTS FOR RECONSTRUCTIVE TREAT9 MENT.— 

10 ‘‘(1) IN GENERAL.—A group health plan, and a 

11 health insurance issuer offering group or individual 

12 health insurance coverage, shall provide coverage for 

13 outpatient and inpatient services related to the diag14 nosis and treatment of a congenital anomaly or birth 

15 defect. 

16 ‘‘(2) REQUIREMENTS.—Coverage provided 

17 under paragraph (1) shall include any service to 

18 functionally improve, repair, or restore any body 

19 part that is medically necessary to achieve normal 

20 body functioning or appearance, as determined by 

21 the treating physician (as defined in section 1861 of 

22 the Social Security Act). Any coverage provided 

23 under such paragraph may be subject to coverage 

24 limits, such as pre-authorization or pre-certification, 

25 as required by the plan or issuer that are no more 


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1 restrictive than the predominant treatment limita2 tions applied to substantially all medical and sur3 gical benefits covered by the plan (or coverage). 

4 ‘‘(3) TREATMENT DEFINED.— 

5 ‘‘(A) IN GENERAL.—Except as provided in 

6 subparagraph (B), in this section, the term 

7 ‘treatment’ includes patient and outpatient care 

8 and services performed to improve or restore 

9 body function (or performed to approximate a 

10 normal appearance), due to congenital anomaly 

11 or birth defect and shall include treatment to 

12 any and all missing or abnormal body parts, 

13 (including teeth, the oral cavity, and their asso14 ciated structures) that would otherwise be pro15 vided under the plan or coverage for any other 

16 injury and sickness, including— 

17 ‘‘(i) inpatient and outpatient care, re18 constructive services and procedures, and 

19 complications thereof, including prosthetics 

20 and appliances; 

21 ‘‘(ii) adjunctive dental, orthodontic or 

22 prosthodontic support from birth until the 

23 medical or surgical treatment of the defect 

24 or anomaly has been completed, including 

25 ongoing or subsequent treatment required 


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1 to maintain function or approximate a nor2 mal appearance; 

3 ‘‘(iii) procedures that do not materi4 ally restore or improve the function of the 

5 body part being treated; and 

6 ‘‘(iv) procedures for secondary condi7 tions and follow-up treatment. 

8 ‘‘(B) EXCEPTION.—The term ‘treatment’ 

9 shall not include cosmetic surgery performed to 

10 reshape normal structures of the body to im11 prove appearance or self-esteem. 

12 ‘‘(b) NOTICE UNDER GROUP HEALTH PLAN.—The 

13 imposition of the requirements of this section shall be 

14 treated as a material modification in the terms of the plan 

15 described in the last sentence of section 102(a), for pur16 poses of assuring notice of such requirements under the 

17 plan, except that the summary description required to be 

18 provided under the fourth sentence of section 104(b)(1) 

19 with respect to such modification shall be provided by not 

20 later than 60 days after the first day of the first plan 

21 year in which such requirements apply.’’. 

22 (2) TECHNICAL AMENDMENTS.— 

23 (A) Section 731(c) of such Act (29 U.S.C. 

24 1191(c)) is amended by striking ‘‘section 711’’ 

25 and inserting ‘‘sections 711 and 716’’. 


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1 (B) Section 732(a) of such Act (29 U.S.C. 

2 1191a(a)) is amended by striking ‘‘section 711’’ 

3 and inserting ‘‘sections 711 and 716’’. 

4 (C) The table of contents in section 1 of 

5 such Act is amended by inserting after the item 

6 relating to section 714 the following new items: 

Sec. 715. Additional market reforms. 

Sec. 716. Standards relating to benefits for congenital anomaly or birth defect. 

7 (c) INTERNAL REVENUE CODE AMENDMENTS.— 

8 (1) IN GENERAL.—Subchapter B of chapter 

9 100 of the Internal Revenue Code of 1986, as 

10 amended by subsection (f) of the section 1563 (relat11 ing to conforming amendments) of Public Law 111– 

12 148, is amended by adding at the end the following: 

13 ‘‘SEC. 9816. STANDARDS RELATING TO BENEFITS FOR CON14 GENITAL ANOMALY OR BIRTH DEFECT. 

15 ‘‘(a) REQUIREMENTS FOR RECONSTRUCTIVE TREAT16 MENT.—A group health plan, and a health insurance 

17 issuer offering group or individual health insurance cov18 erage, shall provide coverage for outpatient and inpatient 

19 services related to the diagnosis and treatment of a con20 genital anomaly or birth defect. 

21 ‘‘(b) REQUIREMENTS.—Coverage provided under 

22 subsection (a) shall include any service to functionally im23 prove, repair, or restore any body part that is medically 

24 necessary to achieve normal body functioning or appearVerDate Sep 11 2014 02:28 Mar 02, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S560.IS S560

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1 ance, as determined by the treating physician (as defined 

2 in section 1861 of the Social Security Act). Any coverage 

3 provided under such subsection may be subject to coverage 

4 limits, such as pre-authorization or pre-certification, as re5 quired by the plan or issuer that are no more restrictive 

6 than the predominant treatment limitations applied to 

7 substantially all medical and surgical benefits covered by 

8 the plan (or coverage). 

9 ‘‘(c) TREATMENT DEFINED.— 

10 ‘‘(1) IN GENERAL.—Except as provided in para11 graph (2), in this section, the term ‘treatment’ in12 cludes patient and outpatient care and services per13 formed to improve or restore body function (or per14 formed to approximate a normal appearance), due to 

15 congenital anomaly or birth defect and shall include 

16 treatment to any and all missing or abnormal body 

17 parts, (including teeth, the oral cavity, and their as18 sociated structures) that would otherwise be pro19 vided under the plan or coverage for any other in20 jury and sickness, including— 

21 ‘‘(A) inpatient and outpatient care, recon22 structive services and procedures, and complica23 tions thereof, including prosthetics and appli24 ances; 


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1 ‘‘(B) adjunctive dental, orthodontic or 

2 prosthodontic support from birth until the med3 ical or surgical treatment of the defect or 

4 anomaly has been completed, including ongoing 

5 or subsequent treatment required to maintain 

6 function or approximate a normal appearance; 

7 ‘‘(C) procedures that do not materially re8 store or improve the function of the body part 

9 being treated; and 

10 ‘‘(D) procedures for secondary conditions 

11 and follow-up treatment. 

12 ‘‘(2) EXCEPTION.—The term ‘treatment’ shall 

13 not include cosmetic surgery performed to reshape 

14 normal structures of the body to improve appearance 

15 or self-esteem.’’. 

16 (2) CLERICAL AMENDMENT.—The table of sec17 tions for such subchapter is amended by adding at 

18 the end the following new items: 

‘‘Sec. 9815. Additional market reforms. 

‘‘Sec. 9816. Standards relating to benefits for congenital anomaly or birth defect.’’. 

19 (d) CLARIFYING AMENDMENT REGARDING APPLICA20 TION TO GRANDFATHERED PLANS.—Section 

21 1251(a)(4)(A) of the Patient Protection and Affordable 

22 Care Act (42 U.S.C. 18011(a)(4)(A)), is amended by add23 ing at the end the following: 


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1 ‘‘(v) Section 2730 (relating to stand2 ards relating to benefits for congenital 

3 anomaly or birth defect), as added by sec4 tion 2(a) of the Ensuring Lasting Smiles 

5 Act.’’. 

6 (e) EFFECTIVE DATE.—The amendments made by 

7 this section shall apply with respect to group health plans 

8 for plan years beginning on or after January 1, 2020, and 

9 with respect to health insurance coverage offered, sold, 

10 issued, renewed, in effect, or operated in the individual 

11 market on or after such date. 

12 (f) COORDINATED REGULATIONS.—Section 104(1) of 

13 the Health Insurance Portability and Accountability Act 

14 of 1996 is amended by striking ‘‘this subtitle (and the 

15 amendments made by this subtitle and section 401)’’ and 

16 inserting ‘‘the provisions of part 7 of subtitle B of title 

17 I of the Employee Retirement Income Security Act of 

18 1974, the provisions of parts A and C of title XXVII of 

19 the Public Health Service Act, and chapter 100 of the In20 ternal Revenue Code of 1986’’. 

Æ 


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