II

106TH CONGRESS

1ST SESSION S. 681

To amend the Public Health Service Act and Employee Retirement Income

Security Act of 1974 to require that group and individual health insurance coverage and group health plans provide coverage for a minimum

hospital stay for mastectomies and lymph node dissections performed

for the treatment of breast cancer.

IN THE SENATE OF THE UNITED STATES

MARCH 23, 1999

Mr. DASCHLE (for himself, Mr. INOUYE, Mr. LAUTENBERG, Mr. CLELAND,

Mr. JOHNSON, Ms. MIKULSKI, Mr. SARBANES, Mrs. MURRAY, and Mr.

HOLLINGS) 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 and Employee Retirement Income Security Act of 1974 to require that

group and individual health insurance coverage and

group health plans provide coverage for a minimum hospital stay for mastectomies and lymph node dissections

performed for the treatment of breast cancer.

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 ‘‘Breast Cancer Patient

5 Protection Act of 1999’’.
2

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1 SEC. 2. COVERAGE OF MINIMUM HOSPITAL STAY FOR CER2 TAIN BREAST CANCER TREATMENT.

3 (a) GROUP HEALTH PLANS.—

4 (1) PUBLIC HEALTH SERVICE ACT AMEND5 MENTS.—

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

7 title XXVII of the Public Health Service Act is

8 amended by adding at the end the following

9 new section:

10 ‘‘SEC. 2707. STANDARDS RELATING TO BENEFITS FOR CER11 TAIN BREAST CANCER TREATMENT.

12 ‘‘(a) REQUIREMENTS FOR MINIMUM HOSPITAL STAY

13 FOLLOWING MASTECTOMY OR LYMPH NODE DISSEC14 TION.—

15 ‘‘(1) IN GENERAL.—A group health plan, and a

16 health insurance issuer offering group health insur17 ance coverage, may not—

18 ‘‘(A) except as provided in paragraph

19 (2)—

20 ‘‘(i) restrict benefits for any hospital

21 length of stay in connection with a mastec22 tomy for the treatment of breast cancer to

23 less than 48 hours, or

24 ‘‘(ii) restrict benefits for any hospital

25 length of stay in connection with a lymph
3

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1 node dissection for the treatment of breast

2 cancer to less than 24 hours, or

3 ‘‘(B) require that a provider obtain author4 ization from the plan or the issuer for pre5 scribing any length of stay required under sub6 paragraph (A) (without regard to paragraph

7 (2)).

8 ‘‘(2) EXCEPTION.—Paragraph (1)(A) shall not

9 apply in connection with any group health plan or

10 health insurance issuer in any case in which the de11 cision to discharge the woman involved prior to the

12 expiration of the minimum length of stay otherwise

13 required under paragraph (1)(A) is made by an at14 tending provider in consultation with the woman.

15 ‘‘(b) PROHIBITIONS.—A group health plan, and a

16 health insurance issuer offering group health insurance

17 coverage in connection with a group health plan, may

18 not—

19 ‘‘(1) deny to a woman eligibility, or continued

20 eligibility, to enroll or to renew coverage under the

21 terms of the plan, solely for the purpose of avoiding

22 the requirements of this section;

23 ‘‘(2) provide monetary payments or rebates to

24 women to encourage such women to accept less than
4

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1 the minimum protections available under this sec2 tion;

3 ‘‘(3) penalize or otherwise reduce or limit the

4 reimbursement of an attending provider because

5 such provider provided care to an individual partici6 pant or beneficiary in accordance with this section;

7 ‘‘(4) provide incentives (monetary or otherwise)

8 to an attending provider to induce such provider to

9 provide care to an individual participant or bene10 ficiary in a manner inconsistent with this section; or

11 ‘‘(5) subject to subsection (c)(3), restrict bene12 fits for any portion of a period within a hospital

13 length of stay required under subsection (a) in a

14 manner which is less favorable than the benefits pro15 vided for any preceding portion of such stay.

16 ‘‘(c) RULES OF CONSTRUCTION.—

17 ‘‘(1) Nothing in this section shall be construed

18 to require a woman who is a participant or

19 beneficiary—

20 ‘‘(A) to undergo a mastectomy or lymph

21 node dissection in a hospital; or

22 ‘‘(B) to stay in the hospital for a fixed pe23 riod of time following a mastectomy or lymph

24 node dissection.
5

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1 ‘‘(2) This section shall not apply with respect to

2 any group health plan, or any group health insur3 ance coverage offered by a health insurance issuer,

4 which does not provide benefits for hospital lengths

5 of stay in connection with a mastectomy or lymph

6 node dissection for the treatment of breast cancer.

7 ‘‘(3) Nothing in this section shall be construed

8 as preventing a group health plan or issuer from im9 posing deductibles, coinsurance, or other cost-shar10 ing in relation to benefits for hospital lengths of stay

11 in connection with a mastectomy or lymph node dis12 section for the treatment of breast cancer under the

13 plan (or under health insurance coverage offered in

14 connection with a group health plan), except that

15 such coinsurance or other cost-sharing for any por16 tion of a period within a hospital length of stay re17 quired under subsection (a) may not be greater than

18 such coinsurance or cost-sharing for any preceding

19 portion of such stay.

20 ‘‘(d) NOTICE.—A group health plan under this part

21 shall comply with the notice requirement under section

22 713(d) of the Employee Retirement Income Security Act

23 of 1974 with respect to the requirements of this section

24 as if such section applied to such plan.
6

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1 ‘‘(e) LEVEL AND TYPE OF REIMBURSEMENTS.—

2 Nothing in this section shall be construed to prevent a

3 group health plan or a health insurance issuer offering

4 group health insurance coverage from negotiating the level

5 and type of reimbursement with a provider for care pro6 vided in accordance with this section.

7 ‘‘(f) PREEMPTION; EXCEPTION FOR HEALTH INSUR8 ANCE COVERAGE IN CERTAIN STATES.—

9 ‘‘(1) IN GENERAL.—The requirements of this

10 section shall not apply with respect to health insur11 ance coverage if there is a State law (as defined in

12 section 2723(d)(1)) for a State that regulates such

13 coverage that is described in any of the following

14 subparagraphs:

15 ‘‘(A) Such State law requires such cov16 erage to provide for at least a 48-hour hospital

17 length of stay following a mastectomy per18 formed for treatment of breast cancer and at

19 least a 24-hour hospital length of stay following

20 a lymph node dissection for treatment of breast

21 cancer.

22 ‘‘(B) Such State law requires, in connec23 tion with such coverage for surgical treatment

24 of breast cancer, that the hospital length of

25 stay for such care is left to the decision of (or
7

•S 681 IS

1 required to be made by) the attending provider

2 in consultation with the woman involved.

3 ‘‘(2) CONSTRUCTION.—Section 2723(a)(1) shall

4 not be construed as superseding a State law de5 scribed in paragraph (1).’’.

6 (B) CONFORMING AMENDMENT.—Section

7 2723(c) of the Public Health Service Act (42

8 U.S.C. 300gg–23(c)) is amended by striking

9 ‘‘section 2704’’ and inserting ‘‘sections 2704

10 and 2707’’.

11 (2) ERISA AMENDMENTS.—

12 (A) IN GENERAL.—Subpart B of part 7 of

13 subtitle B of title I of the Employee Retirement

14 Income Security Act of 1974 is amended by

15 adding at the end the following new section:

16 ‘‘SEC. 714. STANDARDS RELATING TO BENEFITS FOR CER17 TAIN BREAST CANCER TREATMENT.

18 ‘‘(a) REQUIREMENTS FOR MINIMUM HOSPITAL STAY

19 FOLLOWING MASTECTOMY OR LYMPH NODE DISSEC20 TION.—

21 ‘‘(1) IN GENERAL.—A group health plan, and a

22 health insurance issuer offering group health insur23 ance coverage, may not—

24 ‘‘(A) except as provided in paragraph

25 (2)—
8

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1 ‘‘(i) restrict benefits for any hospital

2 length of stay in connection with a mastec3 tomy for the treatment of breast cancer to

4 less than 48 hours, or

5 ‘‘(ii) restrict benefits for any hospital

6 length of stay in connection with a lymph

7 node dissection for the treatment of breast

8 cancer to less than 24 hours, or

9 ‘‘(B) require that a provider obtain author10 ization from the plan or the issuer for pre11 scribing any length of stay required under sub12 paragraph (A) (without regard to paragraph

13 (2)).

14 ‘‘(2) EXCEPTION.—Paragraph (1)(A) shall not

15 apply in connection with any group health plan or

16 health insurance issuer in any case in which the de17 cision to discharge the woman involved prior to the

18 expiration of the minimum length of stay otherwise

19 required under paragraph (1)(A) is made by an at20 tending provider in consultation with the woman.

21 ‘‘(b) PROHIBITIONS.—A group health plan, and a

22 health insurance issuer offering group health insurance

23 coverage in connection with a group health plan, may

24 not—
9

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1 ‘‘(1) deny to a woman eligibility, or continued

2 eligibility, to enroll or to renew coverage under the

3 terms of the plan, solely for the purpose of avoiding

4 the requirements of this section;

5 ‘‘(2) provide monetary payments or rebates to

6 women to encourage such women to accept less than

7 the minimum protections available under this sec8 tion;

9 ‘‘(3) penalize or otherwise reduce or limit the

10 reimbursement of an attending provider because

11 such provider provided care to an individual partici12 pant or beneficiary in accordance with this section;

13 ‘‘(4) provide incentives (monetary or otherwise)

14 to an attending provider to induce such provider to

15 provide care to an individual participant or bene16 ficiary in a manner inconsistent with this section; or

17 ‘‘(5) subject to subsection (c)(3), restrict bene18 fits for any portion of a period within a hospital

19 length of stay required under subsection (a) in a

20 manner which is less favorable than the benefits pro21 vided for any preceding portion of such stay.

22 ‘‘(c) RULES OF CONSTRUCTION.—

23 ‘‘(1) Nothing in this section shall be construed

24 to require a woman who is a participant or

25 beneficiary—
10

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1 ‘‘(A) to undergo a mastectomy or lymph

2 node dissection in a hospital; or

3 ‘‘(B) to stay in the hospital for a fixed pe4 riod of time following a mastectomy or lymph

5 node dissection.

6 ‘‘(2) This section shall not apply with respect to

7 any group health plan, or any group health insur8 ance coverage offered by a health insurance issuer,

9 which does not provide benefits for hospital lengths

10 of stay in connection with a mastectomy or lymph

11 node dissection for the treatment of breast cancer.

12 ‘‘(3) Nothing in this section shall be construed

13 as preventing a group health plan or issuer from im14 posing deductibles, coinsurance, or other cost-shar15 ing in relation to benefits for hospital lengths of stay

16 in connection with a mastectomy or lymph node dis17 section for the treatment of breast cancer under the

18 plan (or under health insurance coverage offered in

19 connection with a group health plan), except that

20 such coinsurance or other cost-sharing for any por21 tion of a period within a hospital length of stay re22 quired under subsection (a) may not be greater than

23 such coinsurance or cost-sharing for any preceding

24 portion of such stay.
11

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1 ‘‘(d) NOTICE UNDER GROUP HEALTH PLAN.—The

2 imposition of the requirements of this section shall be

3 treated as a material modification in the terms of the plan

4 described in section 102(a)(1), for purposes of assuring

5 notice of such requirements under the plan; except that

6 the summary description required to be provided under the

7 last sentence of section 104(b)(1) with respect to such

8 modification shall be provided by not later than 60 days

9 after the first day of the first plan year in which such

10 requirements apply.

11 ‘‘(e) LEVEL AND TYPE OF REIMBURSEMENTS.—

12 Nothing in this section shall be construed to prevent a

13 group health plan or a health insurance issuer offering

14 group health insurance coverage from negotiating the level

15 and type of reimbursement with a provider for care pro16 vided in accordance with this section.

17 ‘‘(f) PREEMPTION; EXCEPTION FOR HEALTH INSUR18 ANCE COVERAGE IN CERTAIN STATES.—

19 ‘‘(1) IN GENERAL.—The requirements of this

20 section shall not apply with respect to health insur21 ance coverage if there is a State law (as defined in

22 section 731(d)(1)) for a State that regulates such

23 coverage that is described in any of the following

24 subparagraphs:
12

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1 ‘‘(A) Such State law requires such cov2 erage to provide for at least a 48-hour hospital

3 length of stay following a mastectomy per4 formed for treatment of breast cancer and at

5 least a 24-hour hospital length of stay following

6 a lymph node dissection for treatment of breast

7 cancer.

8 ‘‘(B) Such State law requires, in connec9 tion with such coverage for surgical treatment

10 of breast cancer, that the hospital length of

11 stay for such care is left to the decision of (or

12 required to be made by) the attending provider

13 in consultation with the woman involved.

14 ‘‘(2) CONSTRUCTION.—Section 731(a)(1) shall

15 not be construed as superseding a State law de16 scribed in paragraph (1).’’.

17 (B) CONFORMING AMENDMENT.—

18 (i) Section 731(c) of the Employee

19 Retirement Income Security Act of 1974

20 (29 U.S.C. 1191(c)), as amended by sec21 tion 603(b)(1) of Public Law 104–204, is

22 amended by striking ‘‘section 711’’ and in23 serting ‘‘sections 711 and 714’’.

24 (ii) Section 732(a) of the Employee

25 Retirement Income Security Act of 1974
13

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1 (29 U.S.C. 1191a(a)), as amended by sec2 tion 603(b)(2) of Public Law 104–204, is

3 amended by striking ‘‘section 711’’ and in4 serting ‘‘sections 711 and 714’’.

5 (C) TABLE OF CONTENTS.—The table of

6 contents in section 1 of the Employee Retire7 ment Income Security Act of 1974 is amended

8 by inserting after the item relating to section

9 713 the following new item:

‘‘Sec. 714. Standards relating to benefits for certain breast cancer treatment.’’.

10 (b) INDIVIDUAL HEALTH INSURANCE.—

11 (1) IN GENERAL.—Part B of title XXVII of the

12 Public Health Service Act is amended by inserting

13 after section 2752 the following new section:

14 ‘‘SEC. 2753. STANDARDS RELATING TO BENEFITS FOR CER15 TAIN BREAST CANCER TREATMENT.

16 ‘‘(a) IN GENERAL.—The provisions of section 2707

17 (other than subsection (d)) shall apply to health insurance

18 coverage offered by a health insurance issuer in the indi19 vidual market in the same manner as it applies to health

20 insurance coverage offered by a health insurance issuer

21 in connection with a group health plan in the small or

22 large group market.

23 ‘‘(b) NOTICE.—A health insurance issuer under this

24 part shall comply with the notice requirement under sec25 tion 714(d) of the Employee Retirement Income Security
14

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1 Act of 1974 with respect to the requirements referred to

2 in subsection (a) as if such section applied to such issuer

3 and such issuer were a group health plan.

4 ‘‘(c) PREEMPTION; EXCEPTION FOR HEALTH INSUR5 ANCE COVERAGE IN CERTAIN STATES.—

6 ‘‘(1) IN GENERAL.—The requirements of this

7 section shall not apply with respect to health insur8 ance coverage if there is a State law (as defined in

9 section 2723(d)(1)) for a State that regulates such

10 coverage that is described in any of the following

11 subparagraphs:

12 ‘‘(A) Such State law requires such cov13 erage to provide for at least a 48-hour hospital

14 length of stay following a mastectomy per15 formed for treatment of breast cancer and at

16 least a 24-hour hospital length of stay following

17 a lymph node dissection for treatment of breast

18 cancer.

19 ‘‘(B) Such State law requires, in connec20 tion with such coverage for surgical treatment

21 of breast cancer, that the hospital length of

22 stay for such care is left to the decision of (or

23 required to be made by) the attending provider

24 in consultation with the woman involved.
15

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1 ‘‘(2) CONSTRUCTION.—Section 2762(a) shall

2 not be construed as superseding a State law de3 scribed in paragraph (1).’’.

4 (2) CONFORMING AMENDMENT.—Section

5 2762(b)(2) of the Public Health Service Act (42

6 U.S.C. 300gg–62(b)(2)), as added by section

7 605(b)(3)(B) of Public Law 104–204, is amended by

8 striking ‘‘section 2751’’ and inserting ‘‘sections

9 2751 and 2753’’.

10 (c) EFFECTIVE DATES.—

11 (1) GROUP HEALTH INSURANCE.—The amend12 ments made by subsection (a) shall apply with re13 spect to group health plans for plan years beginning

14 on or after January 1, 2000.

15 (2) INDIVIDUAL HEALTH INSURANCE.—The

16 amendment made by subsection (b) shall apply with

17 respect to health insurance coverage offered, sold,

18 issued, renewed, in effect, or operated in the indi19 vidual market on or after such date.

Æ