II 

117TH CONGRESS 

1ST SESSION S. 322 

To amend the Health Insurance Portability and Accountability Act. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 12, 2021 

Mr. TILLIS (for himself, Ms. ERNST, Mr. PORTMAN, Mr. CORNYN, Mrs. 

HYDE-SMITH, Mrs. CAPITO, Mr. JOHNSON, Mr. MARSHALL, Mr. BURR, 

and Mr. YOUNG) introduced the following bill; which was read twice and 

referred to the Committee on Health, Education, Labor, and Pensions 

A BILL 

To amend the Health Insurance Portability and 

Accountability Act. 

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 ‘‘Protect Act’’. 

5 SEC. 2. GUARANTEED AVAILABILITY OF COVERAGE; PRO6 HIBITING DISCRIMINATION. 

7 (a) IN GENERAL.—Subtitle C of title I of the Health 

8 Insurance Portability and Accountability Act of 1996 

9 (Public Law 104–191) is amended by adding at the end 

10 the following: 


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1 ‘‘SEC. 196. PROHIBITION OF PRE-EXISTING CONDITION EX2 CLUSIONS. 

3 ‘‘(a) IN GENERAL.—A group health plan and a health 

4 insurance issuer offering group or individual health insur5 ance coverage may not impose any pre-existing condition 

6 exclusion with respect to such plan or coverage. 

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

8 ‘‘(1) PRE-EXISTING CONDITION EXCLUSION.— 

9 ‘‘(A) IN GENERAL.—The term ‘pre-existing 

10 condition exclusion’ means, with respect to cov11 erage, a limitation or exclusion of benefits relat12 ing to a condition based on the fact that the 

13 condition was present before the enrollment 

14 date for such coverage, whether or not any 

15 medical advice, diagnosis, care, or treatment 

16 was recommended or received before such date. 

17 ‘‘(B) TREATMENT OF GENETIC INFORMA18 TION.—Genetic information shall not be treated 

19 as a condition described in subparagraph (A) in 

20 the absence of a diagnosis of the condition re21 lated to such information. 

22 ‘‘(2) ENROLLMENT DATE.—The term ‘enroll23 ment date’ means, with respect to an individual cov24 ered under a group health plan or health insurance 

25 coverage, the date of enrollment of the individual in 


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1 the plan or coverage or, if earlier, the first day of 

2 the waiting period for such enrollment. 

3 ‘‘(3) WAITING PERIOD.—The term ‘waiting pe4 riod’ means, with respect to a group health plan and 

5 an individual who is a potential participant or bene6 ficiary in the plan, the period that must pass with 

7 respect to the individual before the individual is eli8 gible to be covered for benefits under the terms of 

9 the plan. 

10 ‘‘SEC. 197. GUARANTEED AVAILABILITY OF COVERAGE. 

11 ‘‘(a) GUARANTEED ISSUANCE OF COVERAGE IN THE

12 INDIVIDUAL AND GROUP MARKET.—Subject to sub13 sections (b) through (d), each health insurance issuer that 

14 offers health insurance coverage in the individual or group 

15 market in a State must accept every employer and indi16 vidual in the State that applies for such coverage. 

17 ‘‘(b) ENROLLMENT.— 

18 ‘‘(1) RESTRICTION.—A health insurance issuer 

19 described in subsection (a) may restrict enrollment 

20 in coverage described in such subsection to open or 

21 special enrollment periods. 

22 ‘‘(2) ESTABLISHMENT.—A health insurance 

23 issuer described in subsection (a) shall, in accord24 ance with the regulations promulgated under para25 graph (3), establish special enrollment periods for 


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1 qualifying events (under section 603 of the Em2 ployee Retirement Income Security Act of 1974). 

3 ‘‘(3) REGULATIONS.—The Secretary shall pro4 mulgate regulations with respect to enrollment peri5 ods under paragraphs (1) and (2). 

6 ‘‘(c) SPECIAL RULES FOR NETWORK PLANS.— 

7 ‘‘(1) IN GENERAL.—In the case of a health in8 surance issuer that offers health insurance coverage 

9 in the group and individual market through a net10 work plan, the issuer may— 

11 ‘‘(A) limit the employers that may apply 

12 for such coverage to those with eligible individ13 uals who live, work, or reside in the service area 

14 for such network plan; and 

15 ‘‘(B) within the service area of such plan, 

16 deny such coverage to such employers and indi17 viduals if the issuer has demonstrated, if re18 quired, to the applicable State authority that— 

19 ‘‘(i) it will not have the capacity to de20 liver services adequately to enrollees of any 

21 additional groups or any additional individ22 uals because of its obligations to existing 

23 group contract holders and enrollees; and 

24 ‘‘(ii) it is applying this paragraph uni25 formly to all employers and individuals 


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1 without regard to the claims experience of 

2 those individuals, employers and their em3 ployees (and their dependents), or any 

4 health status-related factor relating to 

5 such individuals, employees, and depend6 ents. 

7 ‘‘(2) 180-DAY SUSPENSION UPON DENIAL OF

8 COVERAGE.—An issuer, upon denying health insur9 ance coverage in any service area in accordance with 

10 paragraph (1)(B), may not offer coverage in the 

11 group or individual market within such service area 

12 for a period of 180 days after the date such cov13 erage is denied. 

14 ‘‘(d) APPLICATION OF FINANCIAL CAPACITY LIM15 ITS.— 

16 ‘‘(1) IN GENERAL.—A health insurance issuer 

17 may deny health insurance coverage in the group or 

18 individual market if the issuer has demonstrated, if 

19 required, to the applicable State authority that— 

20 ‘‘(A) it does not have the financial reserves 

21 necessary to underwrite additional coverage; 

22 and 

23 ‘‘(B) it is applying this paragraph uni24 formly to all employers and individuals in the 

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1 sistent with applicable State law and without 

2 regard to the claims experience of those individ3 uals, employers and their employees (and their 

4 dependents) or any health status-related factor 

5 relating to such individuals, employees, and de6 pendents. 

7 ‘‘(2) 180-DAY SUSPENSION UPON DENIAL OF

8 COVERAGE.—A health insurance issuer upon denying 

9 health insurance coverage in connection with group 

10 health plans in accordance with paragraph (1) in a 

11 State may not offer coverage in connection with 

12 group health plans in the group or individual market 

13 in the State for a period of 180 days after the date 

14 such coverage is denied or until the issuer has dem15 onstrated to the applicable State authority, if re16 quired under applicable State law, that the issuer 

17 has sufficient financial reserves to underwrite addi18 tional coverage, whichever is later. An applicable 

19 State authority may provide for the application of 

20 this subsection on a service-area-specific basis. 

21 ‘‘(e) DEFINITIONS.—In this section and in sections 

22 196 and 198: 

23 ‘‘(1) The term ‘Secretary’ means the Secretary 

24 of Health and Human Services. 


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1 ‘‘(2) The terms ‘genetic information’, ‘genetic 

2 test’, ‘group health plan’, ‘group market’, ‘health in3 surance coverage’, ‘health insurance issuer’, ‘group 

4 health insurance coverage’, ‘individual health insur5 ance coverage’, ‘individual market’, and ‘under6 writing purpose’ have the meanings given such terms 

7 in section 2791 of the Public Health Service Act.’’. 

8 ‘‘SEC. 198. PROHIBITING DISCRIMINATION AGAINST INDI9 VIDUAL PARTICIPANTS AND BENEFICIARIES 

10 BASED ON HEALTH STATUS. 

11 ‘‘(a) IN GENERAL.—A group health plan and a health 

12 insurance issuer offering group or individual health insur13 ance coverage may not establish rules for eligibility (in14 cluding continued eligibility) of any individual to enroll 

15 under the terms of the plan or coverage based on any of 

16 the following health status-related factors in relation to 

17 the individual or a dependent of the individual: 

18 ‘‘(1) Health status. 

19 ‘‘(2) Medical condition (including both physical 

20 and mental illnesses). 

21 ‘‘(3) Claims experience. 

22 ‘‘(4) Receipt of health care. 

23 ‘‘(5) Medical history. 

24 ‘‘(6) Genetic information. 


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1 ‘‘(7) Evidence of insurability (including condi2 tions arising out of acts of domestic violence). 

3 ‘‘(8) Disability. 

4 ‘‘(9) Any other health status-related factor de5 termined appropriate by the Secretary. 

6 ‘‘(b) IN PREMIUM CONTRIBUTIONS.— 

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

8 health insurance issuer offering group or individual 

9 health insurance coverage, may not require any indi10 vidual (as a condition of enrollment or continued en11 rollment under the plan) to pay a premium or con12 tribution which is greater than such premium or 

13 contribution for a similarly situated individual en14 rolled in the plan on the basis of any health status15 related factor in relation to the individual or to an 

16 individual enrolled under the plan as a dependent of 

17 the individual. 

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

19 (1) shall be construed— 

20 ‘‘(A) to restrict the amount that an em21 ployer or individual may be charged for cov22 erage under a group health plan except as pro23 vided in paragraph (3) or individual health cov24 erage, as the case may be; or 


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1 ‘‘(B) to prevent a group health plan, and 

2 a health insurance issuer offering group health 

3 insurance coverage, from establishing premium 

4 discounts or rebates or modifying otherwise ap5 plicable copayments or deductibles in return for 

6 adherence to programs of health promotion and 

7 disease prevention. 

8 ‘‘(3) NO GROUP-BASED DISCRIMINATION ON

9 BASIS OF GENETIC INFORMATION.— 

10 ‘‘(A) IN GENERAL.—For purposes of this 

11 section, a group health plan, and health insur12 ance issuer offering group health insurance cov13 erage in connection with a group health plan, 

14 may not adjust premium or contribution 

15 amounts for the group covered under such plan 

16 on the basis of genetic information. 

17 ‘‘(B) RULE OF CONSTRUCTION.—Nothing 

18 in subparagraph (A) or in paragraphs (1) and 

19 (2) of subsection (d) shall be construed to limit 

20 the ability of a health insurance issuer offering 

21 group or individual health insurance coverage to 

22 increase the premium for an employer based on 

23 the manifestation of a disease or disorder of an 

24 individual who is enrolled in the plan. In such 

25 case, the manifestation of a disease or disorder 


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1 in one individual cannot also be used as genetic 

2 information about other group members and to 

3 further increase the premium for the employer. 

4 ‘‘(c) GENETIC TESTING.— 

5 ‘‘(1) LIMITATION ON REQUESTING OR REQUIR6 ING GENETIC TESTING.—A group health plan, and a 

7 health insurance issuer offering health insurance 

8 coverage in connection with a group health plan, 

9 shall not request or require an individual or a family 

10 member of such individual to undergo a genetic test. 

11 ‘‘(2) RULE OF CONSTRUCTION.—Paragraph (1) 

12 shall not be construed to limit the authority of a 

13 health care professional who is providing health care 

14 services to an individual to request that such indi15 vidual undergo a genetic test. 

16 ‘‘(3) RULE OF CONSTRUCTION REGARDING PAY17 MENT.— 

18 ‘‘(A) IN GENERAL.—Nothing in paragraph 

19 (1) shall be construed to preclude a group 

20 health plan, or a health insurance issuer offer21 ing health insurance coverage in connection 

22 with a group health plan, from obtaining and 

23 using the results of a genetic test in making a 

24 determination regarding payment (as such term 

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1 lations promulgated by the Secretary under 

2 part C of title XI of the Social Security Act and 

3 section 264 of this Act, as may be revised from 

4 time to time) consistent with subsection (a). 

5 ‘‘(B) LIMITATION.—For purposes of sub6 paragraph (A), a group health plan, or a health 

7 insurance issuer offering health insurance cov8 erage in connection with a group health plan, 

9 may request only the minimum amount of in10 formation necessary to accomplish the intended 

11 purpose. 

12 ‘‘(4) RESEARCH EXCEPTION.—Notwithstanding 

13 paragraph (1), a group health plan, or a health in14 surance issuer offering health insurance coverage in 

15 connection with a group health plan, may request, 

16 but not require, that a participant or beneficiary un17 dergo a genetic test if each of the following condi18 tions is met: 

19 ‘‘(A) The request is made pursuant to re20 search that complies with part 46 of title 45, 

21 Code of Federal Regulations, or equivalent Fed22 eral regulations, and any applicable State or 

23 local law or regulations for the protection of 

24 human subjects in research. 


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1 ‘‘(B) The plan or issuer clearly indicates to 

2 each participant or beneficiary, or in the case of 

3 a minor child, to the legal guardian of such 

4 beneficiary, to whom the request is made that— 

5 ‘‘(i) compliance with the request is 

6 voluntary; and 

7 ‘‘(ii) noncompliance will have no effect 

8 on enrollment status or premium or con9 tribution amounts. 

10 ‘‘(C) No genetic information collected or 

11 acquired under this paragraph shall be used for 

12 underwriting purposes. 

13 ‘‘(D) The plan or issuer notifies the Sec14 retary in writing that the plan or issuer is con15 ducting activities pursuant to the exception pro16 vided for under this paragraph, including a de17 scription of the activities conducted. 

18 ‘‘(E) The plan or issuer complies with such 

19 other conditions as the Secretary may by regu20 lation require for activities conducted under this 

21 paragraph. 

22 ‘‘(d) PROHIBITION ON COLLECTION OF GENETIC IN23 FORMATION.— 

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

25 health insurance issuer offering health insurance 


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1 coverage in connection with a group health plan, 

2 shall not request, require, or purchase genetic infor3 mation for underwriting purposes. 

4 ‘‘(2) PROHIBITION ON COLLECTION OF GE5 NETIC INFORMATION PRIOR TO ENROLLMENT.—A 

6 group health plan, and a health insurance issuer of7 fering health insurance coverage in connection with 

8 a group health plan, shall not request, require, or 

9 purchase genetic information with respect to any in10 dividual prior to such individual’s enrollment under 

11 the plan or coverage in connection with such enroll12 ment. 

13 ‘‘(3) INCIDENTAL COLLECTION.—If a group 

14 health plan, or a health insurance issuer offering 

15 health insurance coverage in connection with a group 

16 health plan, obtains genetic information incidental to 

17 the requesting, requiring, or purchasing of other in18 formation concerning any individual, such request, 

19 requirement, or purchase shall not be considered a 

20 violation of paragraph (2) if such request, require21 ment, or purchase is not in violation of paragraph 

22 (1). 

23 ‘‘(e) GENETIC INFORMATION OF A FETUS OR EM24 BRYO.—Any reference in this part to genetic information 


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1 concerning an individual or family member of an indi2 vidual shall— 

3 ‘‘(1) with respect to such an individual or fam4 ily member of an individual who is a pregnant 

5 woman, include genetic information of any fetus car6 ried by such pregnant woman; and 

7 ‘‘(2) with respect to an individual or family 

8 member utilizing an assisted reproductive tech9 nology, include genetic information of any embryo le10 gally held by the individual or family member. 

11 ‘‘(f) PROGRAMS OF HEALTH PROMOTION OR DIS12 EASE PREVENTION.— 

13 ‘‘(1) GENERAL PROVISIONS.— 

14 ‘‘(A) GENERAL RULE.—For purposes of 

15 subsection (b)(2)(B), a program of health pro16 motion or disease prevention (referred to in this 

17 subsection as a ‘wellness program’) shall be a 

18 program offered by an employer that is de19 signed to promote health or prevent disease 

20 that meets the applicable requirements of this 

21 subsection. 

22 ‘‘(B) NO CONDITIONS BASED ON HEALTH

23 STATUS FACTOR.—If none of the conditions for 

24 obtaining a premium discount or rebate or 

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1 gram is based on an individual satisfying a 

2 standard that is related to a health status fac3 tor, such wellness program shall not violate this 

4 section if participation in the program is made 

5 available to all similarly situated individuals 

6 and the requirements of paragraph (2) are com7 plied with. 

8 ‘‘(C) CONDITIONS BASED ON HEALTH STA9 TUS FACTOR.—If any of the conditions for ob10 taining a premium discount or rebate or other 

11 reward for participation in a wellness program 

12 is based on an individual satisfying a standard 

13 that is related to a health status factor, such 

14 wellness program shall not violate this section if 

15 the requirements of paragraph (3) are complied 

16 with. 

17 ‘‘(2) WELLNESS PROGRAMS NOT SUBJECT TO

18 REQUIREMENTS.—If none of the conditions for ob19 taining a premium discount or rebate or other re20 ward under a wellness program as described in para21 graph (1)(B) are based on an individual satisfying 

22 a standard that is related to a health status factor 

23 (or if such a wellness program does not provide such 

24 a reward), the wellness program shall not violate 

25 this section if participation in the program is made 


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1 available to all similarly situated individuals. The 

2 following programs shall not have to comply with the 

3 requirements of paragraph (3) if participation in the 

4 program is made available to all similarly situated 

5 individuals: 

6 ‘‘(A) A program that reimburses all or 

7 part of the cost for memberships in a fitness 

8 center. 

9 ‘‘(B) A diagnostic testing program that 

10 provides a reward for participation and does 

11 not base any part of the reward on outcomes. 

12 ‘‘(C) A program that encourages preven13 tive care related to a health condition through 

14 the waiver of the copayment or deductible re15 quirement under group health plan for the costs 

16 of certain items or services related to a health 

17 condition (such as prenatal care or well-baby 

18 visits). 

19 ‘‘(D) A program that reimburses individ20 uals for the costs of smoking cessation pro21 grams without regard to whether the individual 

22 quits smoking. 

23 ‘‘(E) A program that provides a reward to 

24 individuals for attending a periodic health edu25 cation seminar. 


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1 ‘‘(3) WELLNESS PROGRAMS SUBJECT TO RE2 QUIREMENTS.—If any of the conditions for obtaining 

3 a premium discount, rebate, or reward under a 

4 wellness program as described in paragraph (1)(C) 

5 is based on an individual satisfying a standard that 

6 is related to a health status factor, the wellness pro7 gram shall not violate this section if the following re8 quirements are complied with: 

9 ‘‘(A) The reward for the wellness program, 

10 together with the reward for other wellness pro11 grams with respect to the plan that requires 

12 satisfaction of a standard related to a health 

13 status factor, shall not exceed 30 percent of the 

14 cost of employee-only coverage under the plan. 

15 If, in addition to employees or individuals, any 

16 class of dependents (such as spouses or spouses 

17 and dependent children) may participate fully 

18 in the wellness program, such reward shall not 

19 exceed 30 percent of the cost of the coverage in 

20 which an employee or individual and any de21 pendents are enrolled. For purposes of this 

22 paragraph, the cost of coverage shall be deter23 mined based on the total amount of employer 

24 and employee contributions for the benefit 

25 package under which the employee is (or the 


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1 employee and any dependents are) receiving 

2 coverage. A reward may be in the form of a dis3 count or rebate of a premium or contribution, 

4 a waiver of all or part of a cost-sharing mecha5 nism (such as deductibles, copayments, or coin6 surance), the absence of a surcharge, or the 

7 value of a benefit that would otherwise not be 

8 provided under the plan. The Secretaries of 

9 Labor, Health and Human Services, and the 

10 Treasury may increase the reward available 

11 under this subparagraph to up to 50 percent of 

12 the cost of coverage if the Secretaries determine 

13 that such an increase is appropriate. 

14 ‘‘(B) The wellness program shall be rea15 sonably designed to promote health or prevent 

16 disease. A program complies with the preceding 

17 sentence if the program has a reasonable 

18 chance of improving the health of, or preventing 

19 disease in, participating individuals and it is 

20 not overly burdensome, is not a subterfuge for 

21 discriminating based on a health status factor, 

22 and is not highly suspect in the method chosen 

23 to promote health or prevent disease. 

24 ‘‘(C) The plan shall give individuals eligible 

25 for the program the opportunity to qualify for 


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1 the reward under the program at least once 

2 each year. 

3 ‘‘(D) The full reward under the wellness 

4 program shall be made available to all similarly 

5 situated individuals. For such purpose, among 

6 other things: 

7 ‘‘(i) The reward is not available to all 

8 similarly situated individuals for a period 

9 unless the wellness program allows— 

10 ‘‘(I) for a reasonable alternative 

11 standard (or waiver of the otherwise 

12 applicable standard) for obtaining the 

13 reward for any individual for whom, 

14 for that period, it is unreasonably dif15 ficult due to a medical condition to 

16 satisfy the otherwise applicable stand17 ard; and 

18 ‘‘(II) for a reasonable alternative 

19 standard (or waiver of the otherwise 

20 applicable standard) for obtaining the 

21 reward for any individual for whom, 

22 for that period, it is medically inadvis23 able to attempt to satisfy the other24 wise applicable standard. 


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1 ‘‘(ii) If reasonable under the cir2 cumstances, the plan or issuer may seek 

3 verification, such as a statement from an 

4 individual’s physician, that a health status 

5 factor makes it unreasonably difficult or 

6 medically inadvisable for the individual to 

7 satisfy or attempt to satisfy the otherwise 

8 applicable standard. 

9 ‘‘(E) The plan or issuer involved shall dis10 close in all plan materials describing the terms 

11 of the wellness program the availability of a 

12 reasonable alternative standard (or the possi13 bility of waiver of the otherwise applicable 

14 standard) required under subparagraph (D). If 

15 plan materials disclose that such a program is 

16 available, without describing its terms, the dis17 closure under this subparagraph shall not be re18 quired.’’. 

19 (b) CONFORMING AMENDMENT.—The table of con20 tents under section 1(b) of the Health Insurance Port21 ability and Accountability Act of 1996 (Public Law 104– 

22 191) is amended by inserting after the item relating to 

23 section 195 the following: 

‘‘Sec. 196. Prohibition of pre-existing condition exclusions. 

‘‘Sec. 197. Guaranteed availability of coverage. 

‘‘Sec. 198. Prohibiting discrimination against individual participants and beneficiaries based on health status.’’. 


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1 (c) ENFORCEMENT.— 

2 (1) PHSA.—Section 2723 of the Public Health 

3 Service Act (42 U.S.C. 300gg–22) is amended— 

4 (A) in subsection (a)— 

5 (i) in paragraph (1), by inserting 

6 ‘‘and sections 196, 197, and 198 of the 

7 Health Insurance Portability and Account8 ability Act of 1996’’ after ‘‘this part’’; and 

9 (ii) in paragraph (2), by inserting ‘‘or 

10 section 196, 197, or 198 of the Health In11 surance Portability and Accountability Act 

12 of 1996’’ after ‘‘this part’’; and 

13 (B) in subsection (b), by inserting ‘‘or sec14 tion 196, 197, or 198 of the Health Insurance 

15 Portability and Accountability Act of 1996’’ 

16 after ‘‘this part’’ each place such term appears. 

17 (2) ERISA.—Section 715 of the Employee Re18 tirement Income Security Act of 1974 (29 U.S.C. 

19 1185d) is amended by adding at the end the fol20 lowing: 

21 ‘‘(c) ADDITIONAL PROVISIONS.—Section 197 of the 

22 Health Insurance Portability and Accountability Act of 

23 1996 shall apply to health insurance issuers providing 

24 health insurance coverage in connection with group health 

25 plans, and sections 196 and 198 of such Act shall apply 


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1 to group health plans and health insurance issuers pro2 viding health insurance coverage in connection with group 

3 health plans, as if included in this subpart, and to the 

4 extent that any provision of this part conflicts with a pro5 vision of such section 197 with respect to health insurance 

6 issuers providing health insurance coverage in connection 

7 with group health plans or of such section 196 or 198 

8 with respect to group health plans or health insurance 

9 issuers providing health insurance coverage in connection 

10 with group health plans, the provisions of such sections 

11 196, 197, and 198, as applicable, shall apply.’’. 

12 (3) IRC.—Section 9815 of the Internal Rev13 enue Code of 1986 is amended by adding at the end 

14 the following: 

15 ‘‘(c) ADDITIONAL PROVISIONS.—Section 197 of the 

16 Health Insurance Portability and Accountability Act of 

17 1996 shall apply to health insurance issuers providing 

18 health insurance coverage in connection with group health 

19 plans, and section 196 and 198 of such Act shall apply 

20 to group health plans and health insurance issuers pro21 viding health insurance coverage in connection with group 

22 health plans, as if included in this subchapter, and to the 

23 extent that any provision of this chapter conflicts with a 

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1 nection with group health plans or of such section 196 

2 or 198 with respect to group health plans or health insur3 ance issuers providing health insurance coverage in con4 nection with group health plans, the provisions of such 

5 sections 196, 197, and 198, as applicable, shall apply.’’. 

Æ 


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