II

104TH CONGRESS

2D SESSION S. 2005

To prohibit the restriction of certain types of medical communications between

a health care provider and a patient.

IN THE SENATE OF THE UNITED STATES

JULY 31, 1996

Mr. WYDEN introduced the following bill; which was read twice and referred

to the Committee on Labor and Human Resources

A BILL

To prohibit the restriction of certain types of medical communications between a health care provider and a patient.

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 Communications Protection Act of 1996’’.

6 (b) FINDINGS.—Congress finds the following:

7 (1) Patients need access to all relevant informa8 tion to make appropriate decisions, with their physi9 cians, about their health care.
2

•S 2005 IS

1 (2) Restrictions on the ability of physicians to

2 provide full disclosure of all relevant information to

3 patients making health care decisions violate the

4 principles of informed consent and practitioner ethi5 cal standards.

6 (3) The offering and operation of health plans

7 affect commerce among the States. Health care pro8 viders located in one State serve patients who reside

9 in other States as well as that State. In order to

10 provide for uniform treatment of health care provid11 ers and patients among the States, it is necessary to

12 cover health plans operating in one State as well as

13 those operating among the several States.

14 SEC. 2. PROHIBITION OF INTERFERENCE WITH CERTAIN

15 MEDICAL COMMUNICATIONS.

16 (a) IN GENERAL.—

17 (1) PROHIBITION OF CERTAIN PROVISIONS.—

18 Subject to paragraph (2), an entity offering a health

19 plan (as defined in subsection (d)(2)) may not in20 clude any provision that prohibits or restricts any

21 medical communication (as defined in subsection

22 (b)) as part of—

23 (A) a written contract or agreement with a

24 health care provider,
3

•S 2005 IS

1 (B) a written statement to such a provider,

2 or

3 (C) an oral communication to such a pro4 vider.

5 (2) CONSTRUCTION.—Nothing in this section

6 shall be construed as preventing an entity from exer7 cising mutually agreed upon terms and conditions

8 not inconsistent with paragraph (1), including terms

9 or conditions requiring a physician to participate in,

10 and cooperate with, all programs, policies, and pro11 cedures developed or operated by the person, cor12 poration, partnership, association, or other organiza13 tion to ensure, review, or improve the quality of

14 health care.

15 (3) NULLIFICATION.—Any provision described

16 in paragraph (1) is null and void.

17 (b) MEDICAL COMMUNICATION DEFINED.—In this

18 section, the term ‘‘medical communication’’ means a com19 munication made by a health care provider with a patient

20 of the provider (or the guardian or legal representative

21 of such patient) with respect to the patient’s physical or

22 mental condition or treatment options.

23 (c) ENFORCEMENT THROUGH IMPOSITION OF CIVIL

24 MONEY PENALTY.—
4

•S 2005 IS

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

2 paragraph (1) of subsection (a) shall be subject to

3 a civil money penalty of up to $15,000 for each vio4 lation. No such penalty shall be imposed solely on

5 the basis of an oral communication unless the com6 munication is part of a pattern or practice of such

7 communications and the violation is demonstrated

8 by a preponderance of the evidence.

9 (2) PROCEDURES.—The provisions of sub10 sections (c) through (l) of section 1128A of the So11 cial Security Act (42 U.S.C. 1320a–7a) shall apply

12 to civil money penalties under paragraph (1) in the

13 same manner as they apply to a penalty or proceed14 ing under section 1128A(a) of such Act.

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

16 (1) HEALTH CARE PROVIDER.—The term

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

18 State law to provide health care services, including

19 a practitioner such as a nurse anesthetist or chiro20 practor who is so licensed.

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

22 means any public or private health plan or arrange23 ment (including an employee welfare benefit plan)

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

25 and includes an organization of health care providers
5

•S 2005 IS

1 that furnishes health services under a contract or

2 agreement with such a plan.

3 (3) COVERAGE OF THIRD PARTY ADMINISTRA4 TORS.—In the case of a health plan that is an em5 ployee welfare benefit plan (as defined in section

6 3(1) of the Employee Retirement Income Security

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

8 person with responsibility for contracts with health

9 care providers under the plan shall be considered,

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

11 such health plan.

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

13 establish or enforce requirements with respect to the sub14 ject matter of this section, but only if such requirements

15 are consistent with the Act and are more protective of

16 medical communications than the requirements estab17 lished under this section.

18 (g) EFFECTIVE DATE.—Subsection (a) shall take ef19 fect 180 days after the date of the enactment of this Act

20 and shall apply to medical communications made on or

21 after such date.

Æ