II

105TH CONGRESS

1ST SESSION S. 143

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

JANUARY 21, 1997

Mr. DASCHLE (for himself, Mr. HOLLINGS, Mr. KENNEDY, Ms. MIKULSKI,

Mr. LEVIN, Ms. MOSELEY-BRAUN, Mrs. BOXER, Mrs. FEINSTEIN, Mr.

INOUYE, Mrs. MURRAY, Mr. JOHNSON, Mr. BRYAN, Mr. SARBANES, Mr.

FORD, and Mr. LAUTENBERG) introduced the following bill; which was

read twice and referred to the Committee on Labor and Human Resources

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,
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1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Breast Cancer Patient

3 Protection Act of 1997’’.

4 SEC. 2. COVERAGE OF MINIMUM HOSPITAL STAY FOR CER5 TAIN BREAST CANCER TREATMENT.

6 (a) GROUP HEALTH PLANS.—

7 (1) 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 as amended by section 703(a) of Public Law

12 104–204, is amended by adding at the end the

13 following new section:

14 ‘‘SEC. 2706. STANDARDS RELATING TO BENEFITS FOR CER15 TAIN BREAST CANCER TREATMENT.

16 ‘‘(a) REQUIREMENTS FOR MINIMUM HOSPITAL STAY

17 FOLLOWING MASTECTOMY OR LYMPH NODE DISSEC18 TION.—

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

20 health insurance issuer offering group health insur21 ance coverage, may not—

22 ‘‘(A) except as provided in paragraph

23 (2)—
3

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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 prescrib11 ing any length of stay required under subpara12 graph (A) (without regard to paragraph (2)).

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

14 apply in connection with any group health plan or

15 health insurance issuer in any case in which the de16 cision to discharge the woman involved prior to the

17 expiration of the minimum length of stay otherwise

18 required under paragraph (1)(A) is made by an at19 tending provider in consultation with the woman.

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

21 health insurance issuer offering group health insurance

22 coverage in connection with a group health plan, may

23 not—

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

25 eligibility, to enroll or to renew coverage under the
4

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

2 the requirements of this section;

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

4 women to encourage such women to accept less than

5 the minimum protections available under this sec6 tion;

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

8 reimbursement of an attending provider because

9 such provider provided care to an individual partici10 pant or beneficiary in accordance with this section;

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

12 to an attending provider to induce such provider to

13 provide care to an individual participant or bene14 ficiary in a manner inconsistent with this section; or

15 ‘‘(5) subject to subsection (c)(3), restrict bene16 fits for any portion of a period within a hospital

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

18 manner which is less favorable than the benefits pro19 vided for any preceding portion of such stay.

20 ‘‘(c) RULES OF CONSTRUCTION.—

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

22 to require a woman who is a participant or bene23 ficiary—

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

25 node dissection in a hospital; or
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1 ‘‘(B) to stay in the hospital for a fixed pe2 riod of time following a mastectomy or lymph

3 node dissection.

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

5 any group health plan, or any group health insur6 ance coverage offered by a health insurance issuer,

7 which does not provide benefits for hospital lengths

8 of stay in connection with a mastectomy or lymph

9 node dissection for the treatment of breast cancer.

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

11 as preventing a group health plan or issuer from im12 posing deductibles, coinsurance, or other cost-shar13 ing in relation to benefits for hospital lengths of stay

14 in connection with a mastectomy or lymph node dis15 section for the treatment of breast cancer under the

16 plan (or under health insurance coverage offered in

17 connection with a group health plan), except that

18 such coinsurance or other cost-sharing for any por19 tion of a period within a hospital length of stay re20 quired under subsection (a) may not be greater than

21 such coinsurance or cost-sharing for any preceding

22 portion of such stay.

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

24 shall comply with the notice requirement under section

25 713(d) of the Employee Retirement Income Security Act
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1 of 1974 with respect to the requirements of this section

2 as if such section applied to such plan.

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

4 Nothing in this section shall be construed to prevent a

5 group health plan or a health insurance issuer offering

6 group health insurance coverage from negotiating the level

7 and type of reimbursement with a provider for care pro8 vided in accordance with this section.

9 ‘‘(f) PREEMPTION; EXCEPTION FOR HEALTH INSUR10 ANCE COVERAGE IN CERTAIN STATES.—

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

12 section shall not apply with respect to health insur13 ance coverage if there is a State law (as defined in

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

15 coverage that is described in any of the following

16 subparagraphs:

17 ‘‘(A) Such State law requires such cov18 erage to provide for at least a 48-hour hospital

19 length of stay following a mastectomy per20 formed for treatment of breast cancer and at

21 least a 24-hour hospital length of stay following

22 a lymph node dissection for treatment of breast

23 cancer.

24 ‘‘(B) Such State law requires, in connec25 tion with such coverage for surgical treatment
7

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1 of breast cancer, that the hospital length of

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

3 required to be made by) the attending provider

4 in consultation with the woman involved.

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

6 not be construed as superseding a State law de7 scribed in paragraph (1).’’.

8 (B) CONFORMING AMENDMENT.—Section

9 2723(c) of such Act (42 U.S.C. 300gg–23(c)),

10 as amended by section 604(b)(2) of Public Law

11 104–204, is amended by striking ‘‘section

12 2704’’ and inserting ‘‘sections 2704 and 2706’’.

13 (2) ERISA AMENDMENTS.—

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

15 subtitle B of title I of the Employee Retirement

16 Income Security Act of 1974, as amended by

17 section 702(a) of Public Law 104–204, is

18 amended by adding at the end the following

19 new section:

20 ‘‘SEC. 713. STANDARDS RELATING TO BENEFITS FOR CER21 TAIN BREAST CANCER TREATMENT.

22 ‘‘(a) REQUIREMENTS FOR MINIMUM HOSPITAL STAY

23 FOLLOWING MASTECTOMY OR LYMPH NODE DISSEC24 TION.—
8

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

2 health insurance issuer offering group health insur3 ance coverage, may not—

4 ‘‘(A) except as provided in paragraph

5 (2)—

6 ‘‘(i) restrict benefits for any hospital

7 length of stay in connection with a mastec8 tomy for the treatment of breast cancer to

9 less than 48 hours, or

10 ‘‘(ii) restrict benefits for any hospital

11 length of stay in connection with a lymph

12 node dissection for the treatment of breast

13 cancer to less than 24 hours, or

14 ‘‘(B) require that a provider obtain author15 ization from the plan or the issuer for prescrib16 ing any length of stay required under subpara17 graph (A) (without regard to paragraph (2)).

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

19 apply in connection with any group health plan or

20 health insurance issuer in any case in which the de21 cision to discharge the woman involved prior to the

22 expiration of the minimum length of stay otherwise

23 required under paragraph (1)(A) is made by an at24 tending provider in consultation with the woman.
9

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

2 health insurance issuer offering group health insurance

3 coverage in connection with a group health plan, may

4 not—

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

6 eligibility, to enroll or to renew coverage under the

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

8 the requirements of this section;

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

10 women to encourage such women to accept less than

11 the minimum protections available under this sec12 tion;

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

14 reimbursement of an attending provider because

15 such provider provided care to an individual partici16 pant or beneficiary in accordance with this section;

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

18 to an attending provider to induce such provider to

19 provide care to an individual participant or bene20 ficiary in a manner inconsistent with this section; or

21 ‘‘(5) subject to subsection (c)(3), restrict bene22 fits for any portion of a period within a hospital

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

24 manner which is less favorable than the benefits pro25 vided for any preceding portion of such stay.
10

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1 ‘‘(c) RULES OF CONSTRUCTION.—

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

3 to require a woman who is a participant or bene4 ficiary—

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

6 node dissection in a hospital; or

7 ‘‘(B) to stay in the hospital for a fixed pe8 riod of time following a mastectomy or lymph

9 node dissection.

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

11 any group health plan, or any group health insur12 ance coverage offered by a health insurance issuer,

13 which does not provide benefits for hospital lengths

14 of stay in connection with a mastectomy or lymph

15 node dissection for the treatment of breast cancer.

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

17 as preventing a group health plan or issuer from im18 posing deductibles, coinsurance, or other cost-shar19 ing in relation to benefits for hospital lengths of stay

20 in connection with a mastectomy or lymph node dis21 section for the treatment of breast cancer under the

22 plan (or under health insurance coverage offered in

23 connection with a group health plan), except that
11

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1 such coinsurance or other cost-sharing for any por2 tion of a period within a hospital length of stay re3 quired under subsection (a) may not be greater than

4 such coinsurance or cost-sharing for any preceding

5 portion of such stay.

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

7 imposition of the requirements of this section shall be

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

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

10 notice of such requirements under the plan; except that

11 the summary description required to be provided under the

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

13 modification shall be provided by not later than 60 days

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

15 requirements apply.

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

17 Nothing in this section shall be construed to prevent a

18 group health plan or a health insurance issuer offering

19 group health insurance coverage from negotiating the level

20 and type of reimbursement with a provider for care pro21 vided in accordance with this section.

22 ‘‘(f) PREEMPTION; EXCEPTION FOR HEALTH INSUR23 ANCE COVERAGE IN CERTAIN STATES.—
12

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

2 section shall not apply with respect to health insur3 ance coverage if there is a State law (as defined in

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

5 coverage that is described in any of the following

6 subparagraphs:

7 ‘‘(A) Such State law requires such cov8 erage to provide for at least a 48-hour hospital

9 length of stay following a mastectomy per10 formed for treatment of breast cancer and at

11 least a 24-hour hospital length of stay following

12 a lymph node dissection for treatment of breast

13 cancer.

14 ‘‘(B) Such State law requires, in connec15 tion with such coverage for surgical treatment

16 of breast cancer, that the hospital length of

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

18 required to be made by) the attending provider

19 in consultation with the woman involved.

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

21 not be construed as superseding a State law de22 scribed in paragraph (1).’’.

23 (B) CONFORMING AMENDMENTS.—

24 (i) Section 731(c) of such Act (29

25 U.S.C. 1191(c)), as amended by section
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1 603(b)(1) of Public Law 104–204, is

2 amended by striking ‘‘section 711’’ and in3 serting ‘‘sections 711 and 713’’.

4 (ii) Section 732(a) of such Act (29

5 U.S.C. 1191a(a)), as amended by section

6 603(b)(2) of Public Law 104–204, is

7 amended by striking ‘‘section 711’’ and in8 serting ‘‘sections 711 and 713’’.

9 (iii) The table of contents in section 1

10 of such Act is amended by inserting after

11 the item relating to section 712 the follow12 ing new item:

‘‘Sec. 713. Standards relating to benefits for certain breast cancer treatment.’’.

13 (b) INDIVIDUAL HEALTH INSURANCE.—

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

15 Public Health Service Act, as amended by section

16 605(a) of Public Law 104–204, is amended by in17 serting after section 2751 the following new section:

18 ‘‘SEC. 2752. STANDARDS RELATING TO BENEFITS FOR CER19 TAIN BREAST CANCER TREATMENT.

20 ‘‘(a) IN GENERAL.—The provisions of section 2706

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

22 coverage offered by a health insurance issuer in the indi23 vidual market in the same manner as it applies to health

24 insurance coverage offered by a health insurance issuer
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1 in connection with a group health plan in the small or

2 large group market.

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

4 part shall comply with the notice requirement under sec5 tion 713(d) of the Employee Retirement Income Security

6 Act of 1974 with respect to the requirements referred to

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

8 and such issuer were a group health plan.

9 ‘‘(c) PREEMPTION; EXCEPTION FOR HEALTH INSUR10 ANCE COVERAGE IN CERTAIN STATES.—

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

12 section shall not apply with respect to health insur13 ance coverage if there is a State law (as defined in

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

15 coverage that is described in any of the following

16 subparagraphs:

17 ‘‘(A) Such State law requires such cov18 erage to provide for at least a 48-hour hospital

19 length of stay following a mastectomy per20 formed for treatment of breast cancer and at

21 least a 24-hour hospital length of stay following

22 a lymph node dissection for treatment of breast

23 cancer.

24 ‘‘(B) Such State law requires, in connec25 tion with such coverage for surgical treatment
15

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1 of breast cancer, that the hospital length of

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

3 required to be made by) the attending provider

4 in consultation with the woman involved.

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

6 not be construed as superseding a State law de7 scribed in paragraph (1).’’.

8 (2) CONFORMING AMENDMENT.—Section

9 2762(b)(2) of such Act (42 U.S.C. 300gg–62(b)(2)),

10 as added by section 605(b)(3)(B) of Public Law

11 104–204, is amended by striking ‘‘section 2751’’

12 and inserting ‘‘sections 2751 and 2752’’.

13 (c) EFFECTIVE DATES.—

14 (1) GROUP MARKET.—The amendments made

15 by subsection (a) shall apply with respect to group

16 health plans for plan years beginning on or after

17 January 1, 1998.

18 (2) INDIVIDUAL MARKET.—The amendment

19 made by subsection (b) shall apply with respect to

20 health insurance coverage offered, sold, issued, re21 newed, in effect, or operated in the individual mar22 ket on or after such date.

Æ