```

[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.

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                              ----------                              

                     INTERNAL REVENUE CODE OF 1986

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Subtitle K--Group Health Plan Requirements

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CHAPTER 100--GROUP HEALTH PLAN REQUIREMENTS

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                    SUBCHAPTER B--OTHER REQUIREMENTS

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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.

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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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