I 

111TH CONGRESS 

1ST SESSION H. R. 2457 

To amend the Employee Retirement Income Security Act of 1974, the Public 

Health Service Act, and the Internal Revenue Code to require that 

group health plans and issuers of health insurance coverage provide 

coverage for second opinions. 

IN THE HOUSE OF REPRESENTATIVES 

MAY 18, 2009 

Mrs. DAVIS of California (for herself, Mr. MCCOTTER, Mr. RUSH, Mr. 

WITTMAN, and Mr. HARE) introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to 

the Committees on Education and Labor and Ways and Means, 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 amend the Employee Retirement Income Security Act 

of 1974, the Public Health Service Act, and the Internal 

Revenue Code to require that group health plans and 

issuers of health insurance coverage provide coverage 

for second opinions. 

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 ‘‘Right to a Second 

5 Medical Opinion Act of 2009’’. 


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1 SEC. 2. COVERAGE OF SECOND OPINIONS. 

2 (a) GROUP HEALTH PLANS.— 

3 (1) ERISA AMENDMENTS.— 

4 (A) Subpart B of part 7 of title I of the 

5 Employee Retirement Income Security Act of 

6 1974 (29 U.S.C. 1185 et seq.) is amended by 

7 adding at the end the following new section: 

8 ‘‘SEC. 715. COVERAGE OF SECOND OPINIONS. 

9 ‘‘(a) COVERAGE OF SECOND OPINIONS.—A group 

10 health plan, and a health insurance issuer that provides 

11 health insurance coverage in connection with a group 

12 health plan, shall provide coverage for a second opinion 

13 (as defined in subsection (b)(1)), if— 

14 ‘‘(1) the second opinion is requested by— 

15 ‘‘(A) a participant or beneficiary; or 

16 ‘‘(B) a health care practitioner (as defined 

17 in subsection (b)(2))— 

18 ‘‘(i) who, with respect to a medical 

19 condition, is treating or has proposed a 

20 treatment plan for the participant or bene21 ficiary; and 

22 ‘‘(ii) who has the consent of the par23 ticipant or beneficiary to make the request; 

24 and 

25 ‘‘(2)(A) the participant or beneficiary questions 

26 a diagnosis, treatment plan, surgical procedure, or 


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1 therapeutic procedure for a medical condition that 

2 threatens loss of life, quality of life, loss of limb, loss 

3 of bodily function, loss of cognitive function, or sub4 stantial impairment of the mind or body (including 

5 a serious chronic condition or infection); 

6 ‘‘(B) the clinical indications with respect to a 

7 medical condition are not conclusive; 

8 ‘‘(C) a diagnosis for a medical condition is in 

9 doubt due to conflicting test results; 

10 ‘‘(D) the health care practitioner treating the 

11 participant or beneficiary for a medical condition is 

12 unable to diagnose the condition; 

13 ‘‘(E) the treatment plan being used by the par14 ticipant or beneficiary for a medical condition is not 

15 causing improvement in the condition within an ap16 propriate period of time given the diagnosis and plan 

17 of care as expected for such condition; or 

18 ‘‘(F) the medical condition under treatment ac19 celerates or continues. 

20 ‘‘(b) COVERAGE OF A SECOND OPINION AND RE21 LATED DEFINITIONS.—For purposes of this section: 

22 ‘‘(1) COVERAGE OF A SECOND OPINION.—The 

23 term ‘coverage of a second opinion’ means, with re24 spect to a medical condition, coverage for— 


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1 ‘‘(A) at least three appointments for the 

2 participant or beneficiary with the qualified sec3 ond opinion physician (as defined in paragraph 

4 (7)) for the purposes of making and reviewing 

5 a second opinion (as defined in paragraph (8)) 

6 for the medical condition; and 

7 ‘‘(B) ancillary diagnostic tests conducted 

8 or ordered by the qualified second opinion phy9 sician for the purpose of making such second 

10 opinion to the extent such tests would be cov11 ered by the plan or issuer involved if the tests 

12 were conducted to provide information to a par13 ticipating physician (as defined in paragraph 

14 (5)) for the purpose of making the initial opin15 ion (as defined in paragraph (3)) with respect 

16 to the medical condition. 

17 ‘‘(2) HEALTH CARE PRACTITIONER.—The term 

18 ‘health care practitioner’ means a physician or a 

19 nurse practitioner. 

20 ‘‘(3) INITIAL OPINION.—The term ‘initial opin21 ion’ means, with respect to a medical condition, the 

22 first opinion for such condition. 

23 ‘‘(4) OPINION.—The term ‘opinion’ means, for 

24 a medical condition, an opinion respecting the diag25 nosis or treatment plan for the condition that is 


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1 made by a health care practitioner for a participant 

2 or beneficiary. 

3 ‘‘(5) PARTICIPATING PHYSICIAN.—The term 

4 ‘participating physician’ means, with respect to a 

5 group health plan or an issuer of health insurance 

6 coverage, a physician who participates in a preferred 

7 physician network (or similar arrangement) recog8 nized under such coverage of a plan or issuer. 

9 ‘‘(6) PHYSICIAN.—The term ‘physician’ has the 

10 meaning given such term in section 1861(r)(1) of 

11 the Social Security Act (42 U.S.C. 1935x(r)(1)). 

12 ‘‘(7) QUALIFIED SECOND OPINION PHYSI13 CIAN.—The term ‘qualified second opinion physician’ 

14 means, with respect to a medical condition, a physi15 cian who possesses a clinical background, including 

16 training and expertise or a history of treating pa17 tients, related to the condition. 

18 ‘‘(8) SECOND OPINION.—The term ‘second 

19 opinion’ means, with respect to a medical condition, 

20 an opinion made by a qualified second opinion physi21 cian for a medical condition for which another health 

22 care practitioner (as defined in paragraph (2)) made 

23 an initial opinion (as defined in paragraph (3)). 

24 ‘‘(c) FINANCIAL RESPONSIBILITY, TERMS OF COV25 ERAGE, AND LIMITATIONS.— 


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1 ‘‘(1) FINANCIAL RESPONSIBILITY.— 

2 ‘‘(A) PARTICIPANT.—The financial respon3 sibility of the participant or beneficiary (includ4 ing deductibles, coinsurance, co-payments, and 

5 other cost sharing) under a group health plan 

6 or health insurance coverage for a second opin7 ion under subsection (a) shall be the same as 

8 the financial responsibility of the participant or 

9 beneficiary under such plan or coverage for 

10 comparable services furnished by a participating 

11 physician in connection with an initial opinion. 

12 ‘‘(B) PLAN OR ISSUER.—Subject to para13 graph (3), the plan or issuer of health insur14 ance coverage shall reimburse the second opin15 ion physician for the total costs of the physi16 cian’s services that are in excess of the financial 

17 responsibility of the participant under subpara18 graph (A). 

19 ‘‘(2) TERMS OF COVERAGE.—The terms of cov20 erage under a group health plan or health insurance 

21 coverage for a second opinion under subsection (a) 

22 shall be the same as the terms of coverage under 

23 such plan or coverage for an initial opinion made by 

24 a participating physician. 


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1 ‘‘(3) USE OF NETWORKS.—The plan or issuer 

2 may limit coverage of a second opinion to a partici3 pating physician, but only if there is a participating 

4 physician who— 

5 ‘‘(A) is a qualified second opinion physi6 cian, for purposes of the second opinion re7 quested under subsection (a)(1); 

8 ‘‘(B) is located within 50 miles of the 

9 home of the participant or beneficiary with re10 spect to which a request was made under sub11 section (a)(1); and 

12 ‘‘(C) has an initial appointment available 

13 for such participant or beneficiary within 30 

14 days of date on which such request was made. 

15 ‘‘(4) PREAPPROVAL.— 

16 ‘‘(A) IN GENERAL.—Subject to subpara17 graph (B) and subsection (e), the plan or issuer 

18 may require preapproval for the second opinion 

19 from the plan or issuer, but only in accordance 

20 with this paragraph and with paragraph (2). 

21 ‘‘(B) RULES FOR PREAPPROVAL.— 

22 ‘‘(i) NOTICE OF APPROVAL OR DE23 NIAL.—A plan or issuer that requires 

24 preapproval of second opinions shall pro25 vide notice to the participant or beneficiary 


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1 about the plan or issuer’s decision con2 cerning a request for preapproval of a sec3 ond opinion for such participant or bene4 ficiary not later than 10 business days 

5 after the date on which the participant or 

6 beneficiary requests the preapproval. 

7 ‘‘(ii) PROHIBITION.—A plan or issuer 

8 may not require preapproval of a second 

9 opinion if the participant or beneficiary re10 questing such approval faces an imminent 

11 threat to health (including the potential 

12 loss of life, limb, major bodily function) 

13 and a delay in receiving a second opinion 

14 would be detrimental to the participant’s 

15 or beneficiary’s ability to regain maximum 

16 function. In such cases, the provider is re17 quired to reimburse the beneficiary for the 

18 costs of the services and items described in 

19 subparagraphs (A) and (B) of subsection 

20 (b)(1) that are related to the second opin21 ion, minus the allowable copayments deter22 mined under paragraph (1), if the bene23 ficiary paid for such opinion from personal 

24 sources. 


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1 ‘‘(d) CONSULTATION REPORT.—The plan or issuer 

2 may condition payment for the second opinion under sub3 section (a) on the qualified second opinion physician pro4 viding to the participant or beneficiary and to the health 

5 care practitioner who made the initial opinion a consulta6 tion report that includes, with respect to the medical con7 dition for which the second opinion was made, any diag8 nosis of such condition made by the qualified second opin9 ion physician and any recommended procedures, tests, or 

10 treatments that the qualified second opinion physician be11 lieves are appropriate. 

12 ‘‘(e) DENIAL OF COVERAGE OR PREAPPROVAL.—If a 

13 plan or issuer denies coverage for a second opinion or de14 nies preapproval for a second opinion under subsection 

15 (c)(4), the plan or issuer shall, not later than 3 business 

16 days after the date of such denial— 

17 ‘‘(1) notify the participant or beneficiary in 

18 writing of the reasons for the denial; 

19 ‘‘(2) inform the participant or beneficiary of 

20 such participant’s or beneficiary’s right to file an ap21 peal with the plan or issuer; and 

22 ‘‘(3) inform the participant or beneficiary of the 

23 process for appealing the denial. 

24 ‘‘(f) APPEALS.— 


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1 ‘‘(1) IN GENERAL.—The plan or issuer shall es2 tablish a process for a participant or beneficiary to 

3 appeal when preapproval for a second opinion or 

4 coverage of a second opinion is denied by the plan 

5 or issuer. 

6 ‘‘(2) REPORT TO SECRETARY.—No later than 

7 90 days after the date of enactment of this section, 

8 the plan or issuer shall submit to the Secretary a re9 port describing the appeal process developed by the 

10 plan or issuer under paragraph (1). 

11 ‘‘(g) TIMELINES REQUIRED.— 

12 ‘‘(1) IN GENERAL.—Not later than 90 days 

13 after the date of enactment of this section and not 

14 later than 30 days after the date a timeline required 

15 under this subsection is amended, each plan or 

16 issuer shall file with the Secretary a timeline for— 

17 ‘‘(A) providing reimbursement of claims 

18 submitted for second opinions; and 

19 ‘‘(B) if required by the plan or issuer, re20 sponding to requests for preapproval of second 

21 opinions under subsection (c)(4). 

22 ‘‘(2) PUBLIC AVAILABILITY.—Any timeline filed 

23 under paragraph (1) shall be available to the public 

24 upon request. 


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1 ‘‘(h) NOTICE.—The imposition of the requirement of 

2 this section shall be treated as a material modification in 

3 the terms of the plan described in section 102(a), for pur4 poses of assuring notice of such requirements under the 

5 plan; except that the summary description required to be 

6 provided under the last sentence of section 104(b)(1) with 

7 respect to such modification shall be provided by not later 

8 than 60 days after the first day of the first plan year in 

9 which such requirements apply. 

10 ‘‘(i) CONSTRUCTION REGARDING ADDITIONAL OPIN11 IONS.—Nothing in this section shall be construed to pre12 vent the plan or issuer, based on its independent deter13 mination, from providing coverage to a participant or ben14 eficiary for additional medical opinions. 

15 ‘‘(j) SERVICE PLAN CONTACTS.—The Secretary shall 

16 deem health care service plan contracts that provide bene17 fits to participants or beneficiaries through preferred prac18 titioner contracting arrangements to have satisfied the re19 quirements of this section if, subject to all other terms 

20 and conditions of the contract that apply generally to all 

21 other benefits, access to and coverage for second opinions 

22 is not limited.’’. 

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

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

25 inserting ‘‘sections 711 and 715’’. 


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

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

3 inserting ‘‘sections 711 and 715’’. 

4 (D) The table of contents in section 1 of such 

5 Act is amended by inserting after the item relating 

6 to section 714 the following new item: 

‘‘Sec. 715. Coverage of second opinions.’’. 

7 (2) PUBLIC HEALTH SERVICE ACT AMEND8 MENTS.— 

9 (A) IN GENERAL.—Subpart 2 of part A of 

10 title XXVII of the Public Health Service Act 

11 (42 U.S.C. 300gg–4 et seq.) is amended by 

12 adding at the end the following new section: 

13 ‘‘SEC. 2708 COVERAGE OF SECOND OPINIONS. 

14 ‘‘The provisions of section 715 of the Employee Re15 tirement Income Security Act of 1974, except for sub16 section (h) of such section, shall apply to group health 

17 plans, and health insurance issuers providing health insur18 ance coverage in connection with group health plans, as 

19 if included in this subpart.’’. 

20 (B) CLERICAL AMENDMENT.—Section 

21 2723(c) of such Act (42 U.S.C. 300gg–23(c)) is 

22 amended by striking ‘‘section 2704’’ and insert23 ing ‘‘sections 2704 and 2708’’. 

24 (3) INTERNAL REVENUE CODE AMEND25 MENTS.— 


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1 (A) IN GENERAL.—Subchapter B of chap2 ter 100 of the Internal Revenue Code of 1986 

3 (26 U.S.C. 9811 et seq.) is amended by adding 

4 at the end the following: 

5 ‘‘SEC. 9814 COVERAGE OF SECOND OPINIONS. 

6 ‘‘The provisions of section 715 of the Employee Re7 tirement Income Security Act of 1974, except for sub8 section (h) of such section, shall apply to group health 

9 plans as if included in this subchapter.’’. 

10 (B) CONFORMING AMENDMENT.—The 

11 table of sections for subchapter B of chapter 

12 100 of such Code is amended by inserting after 

13 the item relating to section 9813 the following 

14 new item: 

‘‘Sec. 9814. Coverage of second opinions.’’. 

15 (b) INDIVIDUAL HEALTH INSURANCE.— 

16 (1) IN GENERAL.—Subpart 2 of part B of title 

17 XXVII of the Public Health Service Act is amended 

18 by inserting at the end the following new section: 

19 ‘‘SEC. 2754 COVERAGE OF SECOND OPINIONS. 

20 ‘‘The provisions of section 2708 shall apply to health 

21 insurance coverage offered by a health insurance issuer 

22 in the individual market in the same manner as such pro23 visions apply to health insurance coverage offered by a 

24 health insurance issuer in connection with a group health 

25 plan in the small or large group market.’’. 


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1 (2) CONFORMING AMENDMENT.—Section 

2 2762(b)(2) of such Act (42 U.S.C. 300gg–62(b)(2)) 

3 is amended by striking ‘‘section 2751’’ and inserting 

4 ‘‘sections 2751 and 2754’’. 

5 (c) COORDINATION OF ADMINISTRATION.—The Sec6 retary of Labor, the Secretary of the Treasury, and the 

7 Secretary of Health and Human Services shall ensure, 

8 through the execution of an interagency memorandum of 

9 understanding among such Secretaries, that— 

10 (1) regulations, rulings, and interpretations 

11 issued by such Secretaries relating to the same mat12 ter over which two or more such Secretaries have re13 sponsibility under the provisions of this section (and 

14 the amendments made thereby) are administered so 

15 as to have the same effect at all times; and 

16 (2) the enforcement of such regulations, rul17 ings, and interpretations is coordinated by such Sec18 retaries for the purposes of having a consistent en19 forcement strategy that avoids duplication of en20 forcement efforts and assigns priorities in enforce21 ment. 

22 (d) EFFECTIVE DATES.— 

23 (1) GROUP HEALTH PLANS AND GROUP

24 HEALTH INSURANCE COVERAGE.—Subject to para25 graph (3), the amendments made by subsection (a) 


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1 apply with respect to group health plans for plan 

2 years beginning on or after January 1, 2010. 

3 (2) INDIVIDUAL HEALTH INSURANCE COV4 ERAGE.—The amendments made by subsection (b) 

5 apply with respect to health insurance coverage of6 fered, sold, issued, renewed, in effect, or operated in 

7 the individual market on or after January 1, 2010. 

8 (3) COLLECTIVE BARGAINING EXCEPTION.—In 

9 the case of a group health plan maintained pursuant 

10 to one or more collective bargaining agreements be11 tween employee representatives and one or more em12 ployers ratified before the date of enactment of this 

13 Act, the amendments made to subsection (a) shall 

14 not apply to plan years beginning before the later 

15 of— 

16 (A) the date on which the last collective 

17 bargaining agreement relating to the plan ter18 minates (determined without regard to any ex19 tension thereof agreed to after the date of the 

20 enactment of this Act), or 

21 (B) January 1, 2010. 

22 For purposes of subparagraph (A), any plan amend23 ment made pursuant to a collective bargaining 

24 agreement relating to the plan which amends the 

25 plan solely to conform to any requirement added by 


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1 subsection (a) shall not be treated as a termination 

2 of such collective bargaining agreement. 

Æ 


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