I

104TH CONGRESS

2D SESSION H. R. 2976

To prohibit health plans from interfering with health care provider

communications with their patients.

IN THE HOUSE OF REPRESENTATIVES

FEBRUARY 27, 1996

Mr. GANSKE (for himself, Mr. MARKEY, Mr. BARR of Georgia, Mr. BOUCHER,

Mr. COBURN, Mr. DURBIN, Mr. GENE GREEN of Texas, Mr. JOHNSTON

of Florida, Mr. KENNEDY of Massachusetts, Mr. KLECZKA, Ms.

LOFGREN, Mr. MCDERMOTT, Mrs. MEEK of Florida, Mr. MORAN, Mr.

NADLER, Mr. SANDERS, Mr. SERRANO, Mrs. SMITH of Washington, Mr.

STARK, Mr. STUDDS, Mr. TRAFICANT, Mr. WAXMAN, Mr. WHITFIELD,

and Mr. WISE) introduced the following bill; which was referred to the

Committee on Commerce, and in addition to the Committee on Ways and

Means, Economic and Educational Opportunities, and Government Reform and Oversight, for a period to be subsequently determined by the

Speaker, in each case for consideration of such provisions as fall within

the jurisdiction of the committee concerned

A BILL

To prohibit health plans from interfering with health care

provider communications with their patients.

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; FINDINGS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Patient Right To Know Act of 1996’’.
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1 (b) FINDINGS.—Congress finds the following:

2 (1) Patients cannot make appropriate health

3 care decisions without access to all relevant informa4 tion relating to those decisions.

5 (2) Restrictions on the ability of physicians and

6 other health care providers to provide full disclosure

7 of all relevant information to patients making health

8 care decisions violate the principles of informed con9 sent and the ethical standards of the health care

10 professions.

11 (3) Serious concerns have been raised about the

12 use by health plans of contractual clauses or policies

13 that interfere with communications between physi14 cians and other health care providers and their pa15 tients and the impact of such clauses and policies on

16 the quality of care received by those patients.

17 (4) The offering and operation of health plans

18 affects commerce among the States, health care pro19 viders located in one State serve patients who reside

20 in other States as well as that State, and, in order

21 to provide for uniform treatment of health care pro22 viders and patients among the States, it is necessary

23 to cover health plans operating in one State as well

24 as those operating among the several States.
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1 SEC. 2. PROHIBITION OF INTERFERENCE WITH CERTAIN

2 MEDICAL COMMUNICATIONS.

3 (a) IN GENERAL.—

4 (1) PROHIBITION OF CONTRACTUAL PROVI5 SION.—An entity offering a health plan (as defined

6 in subsection (d)(2)) may not provide, as part of any

7 contract or agreement with a health care provider,

8 any restriction on or interference with any medical

9 communication, as defined in subsection (b).

10 (2) PROHIBITION OF ADVERSE ACTION.—An

11 entity offering a health plan may not take any of the

12 following actions against a health care provider on

13 the basis of a medical communication:

14 (A) Refusal to contract with the health

15 care provider.

16 (B) Termination or refusal to renew a con17 tract with the health care provider.

18 (C) Refusal to refer patients to or allow

19 others to refer patients to the health care pro20 vider.

21 (D) Refusal to compensate the health care

22 provider for covered services.

23 (E) Any other retaliatory action against

24 the health care provider.

25 (3) NULLIFICATION.—Any provision that is

26 prohibited under paragraph (1) is null and void.
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1 (b) MEDICAL COMMUNICATION DEFINED.—In this

2 section, the term ‘‘medical communication’’—

3 (1) means any communication, other than a

4 knowing and willful misrepresentation, made by the

5 health care provider—

6 (A) regarding the mental or physical

7 health care needs or treatment of a patient and

8 the provisions, terms, or requirements of the

9 health plan or another health plan relating to

10 such needs or treatment, and

11 (B) between—

12 (i) the provider and a current, former,

13 or prospective patient (or the guardian or

14 legal representative of a patient),

15 (ii) the provider and any employee or

16 representative of the entity offering such

17 plan, or

18 (iii) the provider and any employee or

19 representative of any State or Federal au20 thority with responsibility for the licensing

21 or oversight with respect to such entity or

22 plan; and

23 (2) includes communications concerning—

24 (A) any tests, consultations, and treatment

25 options,
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1 (B) any risks or benefits associated with

2 such tests, consultations, and options,

3 (C) variation among any health care pro4 viders and any institutions providing such serv5 ices in experience, quality, or outcomes,

6 (D) the basis or standard for the decision

7 of an entity offering a health plan to authorize

8 or deny health care services or benefits,

9 (E) the process used by such an entity to

10 determine whether to authorize or deny health

11 care services or benefits, and

12 (F) any financial incentives or disincen13 tives provided by such an entity to a health care

14 provider that are based on service utilization.

15 (c) ENFORCEMENT THROUGH IMPOSITION OF CIVIL

16 MONEY PENALTY.—

17 (1) IN GENERAL.—Any entity that violates

18 paragraph (1) or (2) of subsection (a) shall be sub19 ject to a civil money penalty of—

20 (A) up to $25,000 for each violation, or

21 (B) up to $100,000 for each violation if

22 the Secretary determines that the entity has en23 gaged, within the 5 years immediately preceding

24 such violation, in a pattern of such violations.
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1 (2) PROCEDURES.—The provisions of sub2 sections (c) through (l) of section 1128A of the So3 cial Security Act (42 U.S.C. 1320a–7a) shall apply

4 to civil money penalties under this paragraph in the

5 same manner as they apply to a penalty or proceed6 ing under section 1128A(a) of such Act.

7 (d) DEFINITIONS.—For purposes of this section:

8 (1) HEALTH CARE PROVIDER.—The term

9 ‘‘health care provider’’ means anyone licensed under

10 State law to provide health care services.

11 (2) HEALTH PLAN.—The term ‘‘health plan’’

12 means any public or private health plan or arrange13 ment (including an employee welfare benefit plan)

14 which provides, or pays the cost of, health benefits,

15 and includes an organization of health care providers

16 that furnishes health services under a contract or

17 agreement with such a plan.

18 (3) SECRETARY.—The term ‘‘Secretary’’ means

19 Secretary of Health and Human Services.

20 (4) COVERAGE OF THIRD PARTY ADMINISTRA21 TORS.—In the case of a health plan that is an em22 ployee welfare benefit plan (as defined in section

23 3(1) of the Employee Retirement Income Security

24 Act of 1974), any third party administrator or other

25 person with responsibility for contracts with health
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1 care providers under the plan shall be considered,

2 for purposes of this section, to be an entity offering

3 such health plan.

4 (e) NON-PREEMPTION OF STATE LAW.—A State may

5 establish or enforce requirements with respect to the sub6 ject matter of this section, but only if such requirements

7 are more protective of medical communications than the

8 requirements established under this section.

9 (f) CONSTRUCTION.—Nothing in this section shall be

10 construed as—

11 (1) as requiring an entity offering a health plan

12 to enter into or renew a contract or agreement with

13 any willing health care provider, or

14 (2) preventing an entity from acting on infor15 mation relating to treatment actually provided to a

16 patient or the failure of a health care provider to

17 comply with legal standards relating to the provision

18 of care.

19 (g) EFFECTIVE DATES.—

20 (1) CONTRACTS.—Subsection (a)(1) shall apply

21 to contracts or agreements entered into or renewed

22 on or after the date of the enactment of this Act,

23 and to contracts and agreements entered into before

24 such date as of 30 days after the date of the enact25 ment of this Act.
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1 (2) RETALIATORY ACTIONS.—Subsection (a)(2)

2 shall apply to actions taken on or after the date of

3 the enactment of this Act, regardless of when the

4 communication on which the action is based oc5 curred.

6 (3) NULLIFICATION.—Subsection (a)(3) shall

7 apply to provisions as of the date of the enactment

8 of this Act.

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