II 

111TH CONGRESS 

1ST SESSION S. 1459 

To amend the Public Health Service Act to provide for cooperative governing 

of individual health insurance coverage offered in interstate commerce. 

IN THE SENATE OF THE UNITED STATES 

JULY 16, 2009 

Mr. DEMINT (for himself and Mr. VITTER) introduced the following bill; 

which was read twice and referred to the Committee on Health, Education, Labor, and Pensions 

A BILL 

To amend the Public Health Service Act to provide for 

cooperative governing of individual health insurance coverage offered in interstate commerce. 

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 ‘‘Health Care Choice 

5 Act of 2009’’. 


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1 SEC. 2. SPECIFICATION OF CONSTITUTIONAL AUTHORITY 

2 FOR ENACTMENT OF LAW. 

3 This Act is enacted pursuant to the power granted 

4 Congress under article I, section 8, clause 3, of the United 

5 States Constitution. 

6 SEC. 3. FINDINGS. 

7 Congress finds the following: 

8 (1) The application of numerous and significant 

9 variations in State law impacts the ability of insur10 ers to offer, and individuals to obtain, affordable in11 dividual health insurance coverage, thereby impeding 

12 commerce in individual health insurance coverage. 

13 (2) Individual health insurance coverage is in14 creasingly offered through the Internet, other elec15 tronic means, and by mail, all of which are inher16 ently part of interstate commerce. 

17 (3) In response to these issues, it is appropriate 

18 to encourage increased efficiency in the offering of 

19 individual health insurance coverage through a col20 laborative approach by the States in regulating this 

21 coverage. 

22 (4) The establishment of risk-retention groups 

23 has provided a successful model for the sale of insur24 ance across State lines, as the acts establishing 

25 those groups allow insurance to be sold in multiple 

26 States but regulated by a single State. 


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1 SEC. 4. COOPERATIVE GOVERNING OF INDIVIDUAL 

2 HEALTH INSURANCE COVERAGE. 

3 (a) IN GENERAL.—Title XXVII of the Public Health 

4 Service Act (42 U.S.C. 300gg et seq.) is amended by add5 ing at the end the following: 

6 ‘‘PART D—COOPERATIVE GOVERNING OF 

7 INDIVIDUAL HEALTH INSURANCE COVERAGE 

8 ‘‘SEC. 2795. DEFINITIONS. 

9 ‘‘In this part: 

10 ‘‘(1) PRIMARY STATE.—The term ‘primary 

11 State’ means, with respect to individual health insur12 ance coverage offered by a health insurance issuer, 

13 the State designated by the issuer as the State 

14 whose covered laws shall govern the health insurance 

15 issuer in the sale of such coverage under this part. 

16 An issuer, with respect to a particular policy, may 

17 only designate one such State as its primary State 

18 with respect to all such coverage it offers. Such an 

19 issuer may not change the designated primary State 

20 with respect to individual health insurance coverage 

21 once the policy is issued, except that such a change 

22 may be made upon renewal of the policy. With re23 spect to such designated State, the issuer is deemed 

24 to be doing business in that State. 

25 ‘‘(2) SECONDARY STATE.—The term ‘secondary 

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1 ance coverage offered by a health insurance issuer, 

2 any State that is not the primary State. In the case 

3 of a health insurance issuer that is selling a policy 

4 in, or to a resident of, a secondary State, the issuer 

5 is deemed to be doing business in that secondary 

6 State. 

7 ‘‘(3) HEALTH INSURANCE ISSUER.—The term 

8 ‘health insurance issuer’ has the meaning given such 

9 term in section 2791(b)(2), except that such an 

10 issuer must be licensed in the primary State and be 

11 qualified to sell individual health insurance coverage 

12 in that State. 

13 ‘‘(4) INDIVIDUAL HEALTH INSURANCE COV14 ERAGE.—The term ‘individual health insurance cov15 erage’ means health insurance coverage offered in 

16 the individual market, as defined in section 

17 2791(e)(1). 

18 ‘‘(5) APPLICABLE STATE AUTHORITY.—The 

19 term ‘applicable State authority’ means, with respect 

20 to a health insurance issuer in a State, the State in21 surance commissioner or official or officials des22 ignated by the State to enforce the requirements of 

23 this title for the State with respect to the issuer. 

24 ‘‘(6) HAZARDOUS FINANCIAL CONDITION.—The 

25 term ‘hazardous financial condition’ means that, 


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1 based on its present or reasonably anticipated finan2 cial condition, a health insurance issuer is unlikely 

3 to be able— 

4 ‘‘(A) to meet obligations to policyholders 

5 with respect to known claims and reasonably 

6 anticipated claims; or 

7 ‘‘(B) to pay other obligations in the normal 

8 course of business. 

9 ‘‘(7) COVERED LAWS.— 

10 ‘‘(A) IN GENERAL.—The term ‘covered 

11 laws’ means the laws, rules, regulations, agree12 ments, and orders governing the insurance busi13 ness pertaining to— 

14 ‘‘(i) individual health insurance cov15 erage issued by a health insurance issuer; 

16 ‘‘(ii) the offer, sale, rating (including 

17 medical underwriting), renewal, and 

18 issuance of individual health insurance cov19 erage to an individual; 

20 ‘‘(iii) the provision to an individual in 

21 relation to individual health insurance cov22 erage of health care and insurance related 

23 services; 

24 ‘‘(iv) the provision to an individual in 

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1 erage of management, operations, and in2 vestment activities of a health insurance 

3 issuer; and 

4 ‘‘(v) the provision to an individual in 

5 relation to individual health insurance cov6 erage of loss control and claims adminis7 tration for a health insurance issuer with 

8 respect to liability for which the issuer pro9 vides insurance. 

10 ‘‘(B) EXCEPTION.—Such term does not in11 clude any law, rule, regulation, agreement, or 

12 order governing the use of care or cost manage13 ment techniques, including any requirement re14 lated to provider contracting, network access or 

15 adequacy, health care data collection, or quality 

16 assurance. 

17 ‘‘(8) STATE.—The term ‘State’ means the 50 

18 States and includes the District of Columbia, the 

19 Commonwealth of Puerto Rico, the Virgin Islands, 

20 Guam, American Samoa, and the Commonwealth of 

21 the Northern Mariana Islands. 

22 ‘‘(9) UNFAIR CLAIMS SETTLEMENT PRAC23 TICES.—The term ‘unfair claims settlement prac24 tices’ means only the following practices: 


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1 ‘‘(A) Knowingly misrepresenting to claim2 ants and insured individuals relevant facts or 

3 policy provisions relating to coverage at issue. 

4 ‘‘(B) Failing to acknowledge with reason5 able promptness pertinent communications with 

6 respect to claims arising under policies. 

7 ‘‘(C) Failing to adopt and implement rea8 sonable standards for the prompt investigation 

9 and settlement of claims arising under policies. 

10 ‘‘(D) Failing to effectuate prompt, fair, 

11 and equitable settlement of claims submitted in 

12 which liability has become reasonably clear. 

13 ‘‘(E) Refusing to pay claims without con14 ducting a reasonable investigation. 

15 ‘‘(F) Failing to affirm or deny coverage of 

16 claims within a reasonable period of time after 

17 having completed an investigation related to 

18 those claims. 

19 ‘‘(G) A pattern or practice of compelling 

20 insured individuals or their beneficiaries to in21 stitute suits to recover amounts due under its 

22 policies by offering substantially less than the 

23 amounts ultimately recovered in suits brought 

24 by them. 


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1 ‘‘(H) A pattern or practice of attempting 

2 to settle or settling claims for less than the 

3 amount that a reasonable person would believe 

4 the insured individual or the individual’s bene5 ficiary was entitled by reference to written or 

6 printed advertising material accompanying or 

7 made part of an application. 

8 ‘‘(I) Attempting to settle or settling claims 

9 on the basis of an application that was materi10 ally altered without notice to, or knowledge or 

11 consent of, the insured. 

12 ‘‘(J) Failing to provide forms necessary to 

13 present claims within 15 calendar days of a re14 quests with reasonable explanations regarding 

15 their use. 

16 ‘‘(K) Attempting to cancel a policy in less 

17 time than that prescribed in the policy or by the 

18 law of the primary State. 

19 ‘‘(10) FRAUD AND ABUSE.—The term ‘fraud 

20 and abuse’ means an act or omission committed by 

21 a person who, knowingly and with intent to defraud, 

22 commits, or conceals any material information con23 cerning, one or more of the following: 

24 ‘‘(A) Presenting, causing to be presented, 

25 or preparing with knowledge or belief that it 


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1 will be presented to or by an insurer, a rein2 surer, broker, or its agent, false information as 

3 part of, in support of, or concerning a fact ma4 terial to one or more of the following: 

5 ‘‘(i) An application for the issuance or 

6 renewal of an insurance policy or reinsur7 ance contract. 

8 ‘‘(ii) The rating of an insurance policy 

9 or reinsurance contract. 

10 ‘‘(iii) A claim for payment or benefit 

11 pursuant to an insurance policy or reinsur12 ance contract. 

13 ‘‘(iv) Premiums paid on an insurance 

14 policy or reinsurance contract. 

15 ‘‘(v) Payments made in accordance 

16 with the terms of an insurance policy or 

17 reinsurance contract. 

18 ‘‘(vi) A document filed with the com19 missioner or the chief insurance regulatory 

20 official of another jurisdiction. 

21 ‘‘(vii) The financial condition of an in22 surer or reinsurer. 

23 ‘‘(viii) The formation, acquisition, 

24 merger, reconsolidation, dissolution, or 

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1 surance or reinsurance in all or part of a 

2 State by an insurer or reinsurer. 

3 ‘‘(ix) The issuance of written evidence 

4 of insurance. 

5 ‘‘(x) The reinstatement of an insur6 ance policy. 

7 ‘‘(B) Solicitation or acceptance of new or 

8 renewal insurance risks on behalf of an insurer, 

9 reinsurer, or other person engaged in the busi10 ness of insurance by a person who knows or 

11 should know that the insurer or other person 

12 responsible for the risk is insolvent at the time 

13 of the transaction. 

14 ‘‘(C) Transaction of the business of insur15 ance in violation of laws requiring a license, cer16 tificate of authority, or other legal authority for 

17 the transaction of the business of insurance. 

18 ‘‘(D) Attempt to commit, aiding or abet19 ting in the commission of, or conspiracy to com20 mit the acts or omissions specified in this para21 graph. 

22 ‘‘SEC. 2796. APPLICATION OF LAW. 

23 ‘‘(a) IN GENERAL.—The covered laws of the primary 

24 State shall apply to individual health insurance coverage 

25 offered by a health insurance issuer in the primary State 


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1 and in any secondary State, but only if the coverage and 

2 issuer comply with the conditions of this section with re3 spect to the offering of coverage in any secondary State. 

4 ‘‘(b) EXEMPTIONS FROM COVERED LAWS IN A SEC5 ONDARY STATE.—Except as provided in this section, a 

6 health insurance issuer with respect to its offer, sale, rat7 ing (including medical underwriting), renewal, and 

8 issuance of individual health insurance coverage in any 

9 secondary State is exempt from any covered laws of the 

10 secondary State (and any rules, regulations, agreements, 

11 or orders sought or issued by such State under or related 

12 to such covered laws) to the extent that such laws would— 

13 ‘‘(1) make unlawful, or regulate, directly or in14 directly, the operation of the health insurance issuer 

15 operating in the secondary State, except that any 

16 secondary State may require such an issuer— 

17 ‘‘(A) to pay, on a nondiscriminatory basis, 

18 applicable premium and other taxes (including 

19 high risk pool assessments) which are levied on 

20 insurers and surplus lines insurers, brokers, or 

21 policyholders under the laws of the State; 

22 ‘‘(B) to register with and designate the 

23 State insurance commissioner as its agent solely 

24 for the purpose of receiving service of legal doc25 uments or process; 


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1 ‘‘(C) to submit to an examination of its fi2 nancial condition by the State insurance com3 missioner in any State in which the issuer is 

4 doing business to determine the issuer’s finan5 cial condition, if— 

6 ‘‘(i) the State insurance commissioner 

7 of the primary State has not done an ex8 amination within the period recommended 

9 by the National Association of Insurance 

10 Commissioners; and 

11 ‘‘(ii) any such examination is con12 ducted in accordance with the examiners’ 

13 handbook of the National Association of 

14 Insurance Commissioners and is coordi15 nated to avoid unjustified duplication and 

16 unjustified repetition; 

17 ‘‘(D) to comply with a lawful order 

18 issued— 

19 ‘‘(i) in a delinquency proceeding com20 menced by the State insurance commis21 sioner if there has been a finding of finan22 cial impairment under subparagraph (C); 

23 or 

24 ‘‘(ii) in a voluntary dissolution pro25 ceeding; 


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1 ‘‘(E) to comply with an injunction issued 

2 by a court of competent jurisdiction, upon a pe3 tition by the State insurance commissioner al4 leging that the issuer is in hazardous financial 

5 condition; 

6 ‘‘(F) to participate, on a nondiscriminatory 

7 basis, in any insurance insolvency guaranty as8 sociation or similar association to which a 

9 health insurance issuer in the State is required 

10 to belong; 

11 ‘‘(G) to comply with any State law regard12 ing fraud and abuse (as defined in section 

13 2795(10)), except that if the State seeks an in14 junction regarding the conduct described in this 

15 subparagraph, such injunction must be obtained 

16 from a court of competent jurisdiction; 

17 ‘‘(H) to comply with any State law regard18 ing unfair claims settlement practices (as de19 fined in section 2795(9)); or 

20 ‘‘(I) to comply with the applicable require21 ments for independent review under section 

22 2798 with respect to coverage offered in the 

23 State; 

24 ‘‘(2) require any individual health insurance 

25 coverage issued by the issuer to be countersigned by 


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1 an insurance agent or broker residing in that sec2 ondary State; or 

3 ‘‘(3) otherwise discriminate against the issuer 

4 issuing insurance in both the primary State and in 

5 any secondary State. 

6 ‘‘(c) CLEAR AND CONSPICUOUS DISCLOSURE.—A 

7 health insurance issuer shall provide the following notice, 

8 in 12-point bold type, in any insurance coverage offered 

9 in a secondary State under this part by such a health in10 surance issuer and at renewal of the policy, with the 5 

11 blank spaces therein being appropriately filled with the 

12 name of the health insurance issuer, the name of primary 

13 State, the name of the secondary State, the name of the 

14 secondary State, and the name of the secondary State, re15 spectively, for the coverage concerned: 

16 This policy is issued by lllll, and is governed by 

17 the laws and regulations of the State of lllll, and 

18 it has met all the laws of that State as determined by 

19 that State’s Department of Insurance. This policy may be 

20 less expensive than others because it is not subject to all 

21 of the insurance laws and regulations of the State of 

22 lllll, including coverage of some services or bene23 fits mandated by the law of the State of lllll. Ad24 ditionally, this policy is not subject to all of the consumer 

25 protection laws or restrictions on rate changes of the State 


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1 of lllll. As with all insurance products, before pur2 chasing this policy, you should carefully review the policy 

3 and determine what health care services the policy covers 

4 and what benefits it provides, including any exclusions, 

5 limitations, or conditions for such services or benefits.’’. 

6 ‘‘(d) PROHIBITION ON CERTAIN RECLASSIFICATIONS

7 AND PREMIUM INCREASES.— 

8 ‘‘(1) IN GENERAL.—For purposes of this sec9 tion, a health insurance issuer that provides indi10 vidual health insurance coverage to an individual 

11 under this part in a primary or secondary State may 

12 not upon renewal— 

13 ‘‘(A) move or reclassify the individual in14 sured under the health insurance coverage from 

15 the class such individual is in at the time of 

16 issue of the contract based on the health-status 

17 related factors of the individual; or 

18 ‘‘(B) increase the premiums assessed the 

19 individual for such coverage based on a health 

20 status-related factor or change of a health sta21 tus-related factor or the past or prospective 

22 claim experience of the insured individual. 

23 ‘‘(2) CONSTRUCTION.—Nothing in paragraph 

24 (1) shall be construed to prohibit a health insurance 

25 issuer— 


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1 ‘‘(A) from terminating or discontinuing 

2 coverage or a class of coverage in accordance 

3 with subsections (b) and (c) of section 2742; 

4 ‘‘(B) from raising premium rates for all 

5 policy holders within a class based on claims ex6 perience; 

7 ‘‘(C) from changing premiums or offering 

8 discounted premiums to individuals who engage 

9 in wellness activities at intervals prescribed by 

10 the issuer, if such premium changes or incen11 tives— 

12 ‘‘(i) are disclosed to the consumer in 

13 the insurance contract; 

14 ‘‘(ii) are based on specific wellness ac15 tivities that are not applicable to all indi16 viduals; and 

17 ‘‘(iii) are not obtainable by all individ18 uals to whom coverage is offered; 

19 ‘‘(D) from reinstating lapsed coverage; or 

20 ‘‘(E) from retroactively adjusting the rates 

21 charged an insured individual if the initial rates 

22 were set based on material misrepresentation by 

23 the individual at the time of issue. 

24 ‘‘(e) PRIOR OFFERING OF POLICY IN PRIMARY

25 STATE.—A health insurance issuer may not offer for sale 


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1 individual health insurance coverage in a secondary State 

2 unless that coverage is currently offered for sale in the 

3 primary State. 

4 ‘‘(f) LICENSING OF AGENTS OR BROKERS FOR

5 HEALTH INSURANCE ISSUERS.—Any State may require 

6 that a person acting, or offering to act, as an agent or 

7 broker for a health insurance issuer with respect to the 

8 offering of individual health insurance coverage obtain a 

9 license from that State, with commissions or other com10 pensation subject to the provisions of the laws of that 

11 State, except that a State may not impose any qualifica12 tion or requirement which discriminates against a non13 resident agent or broker. 

14 ‘‘(g) DOCUMENTS FOR SUBMISSION TO STATE IN15 SURANCE COMMISSIONER.—Each health insurance issuer 

16 issuing individual health insurance coverage in both pri17 mary and secondary States shall submit— 

18 ‘‘(1) to the insurance commissioner of each 

19 State in which it intends to offer such coverage, be20 fore it may offer individual health insurance cov21 erage in such State— 

22 ‘‘(A) a copy of the plan of operation, feasi23 bility study, or any similar statement of the pol24 icy being offered and its coverage (which shall 


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1 include the name of its primary State and its 

2 principal place of business); 

3 ‘‘(B) written notice of any change in its 

4 designation of its primary State; and 

5 ‘‘(C) written notice from the issuer of the 

6 issuer’s compliance with all the laws of the pri7 mary State; and 

8 ‘‘(2) to the insurance commissioner of each sec9 ondary State in which it offers individual health in10 surance coverage, a copy of the issuer’s quarterly fi11 nancial statement submitted to the primary State, 

12 which statement shall be certified by an independent 

13 public accountant and contain a statement of opin14 ion on loss and loss adjustment expense reserves 

15 made by— 

16 ‘‘(A) a member of the American Academy 

17 of Actuaries; or 

18 ‘‘(B) a qualified loss reserve specialist. 

19 ‘‘(h) POWER OF COURTS TO ENJOIN CONDUCT.— 

20 Nothing in this section shall be construed to affect the 

21 authority of any Federal or State court to enjoin— 

22 ‘‘(1) the solicitation or sale of individual health 

23 insurance coverage by a health insurance issuer to 

24 any person or group who is not eligible for such in25 surance; or 


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1 ‘‘(2) the solicitation or sale of individual health 

2 insurance coverage that violates the requirements of 

3 the law of a secondary State which are described in 

4 subparagraphs (A) through (H) of subsection (b)(1). 

5 ‘‘(i) POWER OF SECONDARY STATES TO TAKE AD6 MINISTRATIVE ACTION.—Nothing in this section shall be 

7 construed to affect the authority of any State to enjoin 

8 conduct in violation of that State’s laws described in sub9 section (b)(1). 

10 ‘‘(j) STATE POWERS TO ENFORCE STATE LAWS.— 

11 ‘‘(1) IN GENERAL.—Subject to the provisions of 

12 subsection (b)(1)(G) (relating to injunctions) and 

13 paragraph (2), nothing in this section shall be con14 strued to affect the authority of any State to make 

15 use of any of its powers to enforce the laws of such 

16 State with respect to which a health insurance issuer 

17 is not exempt under subsection (b). 

18 ‘‘(2) COURTS OF COMPETENT JURISDICTION.— 

19 If a State seeks an injunction regarding the conduct 

20 described in paragraphs (1) and (2) of subsection 

21 (h), such injunction must be obtained from a Fed22 eral or State court of competent jurisdiction. 

23 ‘‘(k) STATES’ AUTHORITY TO SUE.—Nothing in this 

24 section shall affect the authority of any State to bring ac25 tion in any Federal or State court. 


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1 ‘‘(l) GENERALLY APPLICABLE LAWS.—Nothing in 

2 this section shall be construed to affect the applicability 

3 of State laws generally applicable to persons or corpora4 tions. 

5 ‘‘(m) GUARANTEED AVAILABILITY OF COVERAGE TO

6 HIPPA ELIGIBLE INDIVIDUALS.—To the extent that a 

7 health insurance issuer is offering coverage in a primary 

8 State that does not accommodate residents of secondary 

9 States or does not provide a working mechanism for resi10 dents of a secondary State, and the issuer is offering cov11 erage under this part in such secondary State which has 

12 not adopted a qualified high risk pool as its acceptable 

13 alternative mechanism (as defined in section 2744(c)(2)), 

14 the issuer shall, with respect to any individual health in15 surance coverage offered in a secondary State under this 

16 part, comply with the guaranteed availability requirements 

17 for eligible individuals in section 2741. 

18 ‘‘SEC. 2797. PRIMARY STATE MUST MEET FEDERAL FLOOR 

19 BEFORE ISSUER MAY SELL INTO SECONDARY 

20 STATES. 

21 ‘‘A health insurance issuer may not offer, sell, or 

22 issue individual health insurance coverage in a secondary 

23 State if the State insurance commissioner does not use 

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1 ital and surplus requirements for all health insurance 

2 issuers. 

3 ‘‘SEC. 2798. INDEPENDENT EXTERNAL APPEALS PROCE4 DURES. 

5 ‘‘(a) RIGHT TO EXTERNAL APPEAL.—A health insur6 ance issuer may not offer, sell, or issue individual health 

7 insurance coverage in a secondary State under the provi8 sions of this title unless— 

9 ‘‘(1) both the secondary State and the primary 

10 State have legislation or regulations in place estab11 lishing an independent review process for individuals 

12 who are covered by individual health insurance cov13 erage, or 

14 ‘‘(2) in any case in which the requirements of 

15 paragraph (1) are not met with respect to either of 

16 such States, the issuer provides an independent re17 view mechanism substantially identical (as deter18 mined by the applicable State authority of such 

19 State) to that prescribed in the ‘Health Carrier Ex20 ternal Review Model Act’ of the National Association 

21 of Insurance Commissioners for all individuals who 

22 purchase insurance coverage under the terms of this 

23 part, except that, under such mechanism, the review 

24 is conducted by an independent medical reviewer, or 


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1 a panel of such reviewers, with respect to whom the 

2 requirements of subsection (b) are met. 

3 ‘‘(b) QUALIFICATIONS OF INDEPENDENT MEDICAL

4 REVIEWERS.—In the case of any independent review 

5 mechanism referred to in subsection (a)(2), the following 

6 provisions shall apply: 

7 ‘‘(1) IN GENERAL.—In referring a denial of a 

8 claim to an independent medical reviewer, or to any 

9 panel of such reviewers, to conduct independent 

10 medical review, the issuer shall ensure that— 

11 ‘‘(A) each independent medical reviewer 

12 meets the qualifications described in paragraphs 

13 (2) and (3); 

14 ‘‘(B) with respect to each review, each re15 viewer meets the requirements of paragraph (4) 

16 and the reviewer, or at least 1 reviewer on the 

17 panel, meets the requirements described in 

18 paragraph (5); and 

19 ‘‘(C) compensation provided by the issuer 

20 to each reviewer is consistent with paragraph 

21 (6). 

22 ‘‘(2) LICENSURE AND EXPERTISE.—Each inde23 pendent medical reviewer shall be a physician 

24 (allopathic or osteopathic) or health care profes25 sional who— 


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1 ‘‘(A) is appropriately credentialed or li2 censed in 1 or more States to deliver health 

3 care services; and 

4 ‘‘(B) typically treats the condition, makes 

5 the diagnosis, or provides the type of treatment 

6 under review. 

7 ‘‘(3) INDEPENDENCE.— 

8 ‘‘(A) IN GENERAL.—Subject to subpara9 graph (B), each independent medical reviewer 

10 in a case shall— 

11 ‘‘(i) not be a related party (as defined 

12 in paragraph (7)); 

13 ‘‘(ii) not have a material familial, fi14 nancial, or professional relationship with 

15 such a party; and 

16 ‘‘(iii) not otherwise have a conflict of 

17 interest with such a party (as determined 

18 under regulations). 

19 ‘‘(B) EXCEPTION.—Nothing in subpara20 graph (A) shall be construed to— 

21 ‘‘(i) prohibit an individual, solely on 

22 the basis of affiliation with the issuer, 

23 from serving as an independent medical re24 viewer if— 


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1 ‘‘(I) a non-affiliated individual is 

2 not reasonably available; 

3 ‘‘(II) the affiliated individual is 

4 not involved in the provision of items 

5 or services in the case under review; 

6 ‘‘(III) the fact of such an affili7 ation is disclosed to the issuer and the 

8 enrollee (or authorized representative) 

9 and neither party objects; and 

10 ‘‘(IV) the affiliated individual is 

11 not an employee of the issuer and 

12 does not provide services exclusively or 

13 primarily to or on behalf of the issuer; 

14 ‘‘(ii) prohibit an individual who has 

15 staff privileges at the institution where the 

16 treatment involved takes place from serv17 ing as an independent medical reviewer 

18 merely on the basis of such affiliation if 

19 the affiliation is disclosed to the issuer and 

20 the enrollee (or authorized representative) 

21 and neither party objects; or 

22 ‘‘(iii) prohibit receipt of compensation 

23 by an independent medical reviewer from 

24 an entity if the compensation is provided 

25 consistent with paragraph (6). 


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1 ‘‘(4) PRACTICING HEALTH CARE PROFESSIONAL

2 IN SAME FIELD.— 

3 ‘‘(A) IN GENERAL.—In a case involving 

4 treatment, or the provision of items or serv5 ices— 

6 ‘‘(i) by a physician, a reviewer shall be 

7 a practicing physician (allopathic or osteo8 pathic) of the same or similar specialty, as 

9 a physician who, acting within the appro10 priate scope of practice within the State in 

11 which the service is provided or rendered, 

12 typically treats the condition, makes the 

13 diagnosis, or provides the type of treat14 ment under review; or 

15 ‘‘(ii) by a non-physician health care 

16 professional, the reviewer, or at least 1 

17 member of the review panel, shall be a 

18 practicing non-physician health care pro19 fessional of the same or similar specialty 

20 as the non-physician health care profes21 sional who, acting within the appropriate 

22 scope of practice within the State in which 

23 the service is provided or rendered, typi24 cally treats the condition, makes the diagVerDate Nov 24 2008 05:01 Jul 17, 2009 Jkt 079200 PO 00000 Frm 00025 Fmt 6652 Sfmt 6201 E:\BILLS\S1459.IS S1459

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1 nosis, or provides the type of treatment 

2 under review. 

3 ‘‘(B) PRACTICING DEFINED.—For pur4 poses of this paragraph, the term ‘practicing’ 

5 means, with respect to an individual who is a 

6 physician or other health care professional, that 

7 the individual provides health care services to 

8 individual patients on average at least 2 days 

9 per week. 

10 ‘‘(5) PEDIATRIC EXPERTISE.—In the case of an 

11 external review relating to a child, a reviewer shall 

12 have expertise under paragraph (2) in pediatrics. 

13 ‘‘(6) LIMITATIONS ON REVIEWER COMPENSA14 TION.—Compensation provided by the issuer to an 

15 independent medical reviewer in connection with a 

16 review under this section shall— 

17 ‘‘(A) not exceed a reasonable level; and 

18 ‘‘(B) not be contingent on the decision ren19 dered by the reviewer. 

20 ‘‘(7) RELATED PARTY DEFINED.—For purposes 

21 of this section, the term ‘related party’ means, with 

22 respect to a denial of a claim under a coverage relat23 ing to an enrollee, any of the following: 

24 ‘‘(A) The issuer involved, or any fiduciary, 

25 officer, director, or employee of the issuer. 


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1 ‘‘(B) The enrollee (or authorized represent2 ative). 

3 ‘‘(C) The health care professional that pro4 vides the items or services involved in the de5 nial. 

6 ‘‘(D) The institution at which the items or 

7 services (or treatment) involved in the denial 

8 are provided. 

9 ‘‘(E) The manufacturer of any drug or 

10 other item that is included in the items or serv11 ices involved in the denial. 

12 ‘‘(F) Any other party determined under 

13 any regulations to have a substantial interest in 

14 the denial involved. 

15 ‘‘(8) DEFINITIONS.—For purposes of this sub16 section: 

17 ‘‘(A) ENROLLEE.—The term ‘enrollee’ 

18 means, with respect to health insurance cov19 erage offered by a health insurance issuer, an 

20 individual enrolled with the issuer to receive 

21 such coverage. 

22 ‘‘(B) HEALTH CARE PROFESSIONAL.—The 

23 term ‘health care professional’ means an indi24 vidual who is licensed, accredited, or certified 

25 under State law to provide specified health care 


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1 services and who is operating within the scope 

2 of such licensure, accreditation, or certification. 

3 ‘‘SEC. 2799. ENFORCEMENT. 

4 ‘‘(a) IN GENERAL.—Subject to subsection (b), with 

5 respect to specific individual health insurance coverage, 

6 the primary State for such coverage has sole jurisdiction 

7 to enforce the primary State’s covered laws in the primary 

8 State and any secondary State. 

9 ‘‘(b) SECONDARY STATE’S AUTHORITY.—Nothing in 

10 subsection (a) shall be construed to affect the authority 

11 of a secondary State to enforce its laws as set forth in 

12 the exception specified in section 2796(b)(1). 

13 ‘‘(c) COURT INTERPRETATION.—In reviewing action 

14 initiated by the applicable secondary State authority, the 

15 court of competent jurisdiction shall apply the covered 

16 laws of the primary State. 

17 ‘‘(d) NOTICE OF COMPLIANCE FAILURE.—In the case 

18 of individual health insurance coverage offered in a sec19 ondary State that fails to comply with the covered laws 

20 of the primary State, the applicable State authority of the 

21 secondary State may notify the applicable State authority 

22 of the primary State.’’. 

23 (b) EFFECTIVE DATE.—The amendment made by 

24 subsection (a) shall apply to individual health insurance 


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1 coverage offered, issued, or sold after the date that is one 

2 year after the date of the enactment of this Act. 

3 (c) GAO ONGOING STUDY AND REPORTS.— 

4 (1) STUDY.—The Comptroller General of the 

5 United States shall conduct an ongoing study con6 cerning the effect of the amendment made by sub7 section (a) on— 

8 (A) the number of uninsured and under-in9 sured; 

10 (B) the availability and cost of health in11 surance policies for individuals with pre-existing 

12 medical conditions; 

13 (C) the availability and cost of health in14 surance policies generally; 

15 (D) the elimination or reduction of dif16 ferent types of benefits under health insurance 

17 policies offered in different States; and 

18 (E) cases of fraud or abuse relating to 

19 health insurance coverage offered under such 

20 amendment and the resolution of such cases. 

21 (2) ANNUAL REPORTS.—The Comptroller Gen22 eral shall submit to Congress an annual report, after 

23 the end of each of the 5 years following the effective 

24 date of the amendment made by subsection (a), on 

25 the ongoing study conducted under paragraph (1). 


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1 SEC. 5. SEVERABILITY. 

2 If any provision of the Act or the application of such 

3 provision to any person or circumstance is held to be un4 constitutional, the remainder of this Act and the applica5 tion of the provisions of such to any other person or cir6 cumstance shall not be affected. 

Æ 


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