I

106TH CONGRESS

1ST SESSION H. R. 2089

To amend title I of the Employee Retirement Income Security Act of 1974

to provide new procedures and access to review for grievances arising

under group health plans.

IN THE HOUSE OF REPRESENTATIVES

JUNE 9, 1999

Mr. BOEHNER introduced the following bill; which was referred to the

Committee on Education and the Workforce

A BILL

To amend title I of the Employee Retirement Income Security Act of 1974 to provide new procedures and access

to review for grievances arising under group health plans.

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 ‘‘Group Health Plan

5 Review Standards Act of 1999’’.

6 SEC. 2. SPECIAL RULES FOR GROUP HEALTH PLANS.

7 (a) IN GENERAL.—Section 503 of the Employee Re8 tirement Income Security Act of 1974 (29 U.S.C. 1133)

9 is amended—
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1 (1) by inserting ‘‘(a) IN GENERAL.—’’ after

2 ‘‘SEC. 503.’’;

3 (2) by inserting ‘‘(other than a group health

4 plan)’’ after ‘‘employee benefit plan’’; and

5 (3) by adding at the end the following new sub6 section:

7 ‘‘(b) SPECIAL RULES FOR GROUP HEALTH PLANS.—

8 ‘‘(1) COVERAGE DETERMINATIONS.—Every

9 group health plan shall—

10 ‘‘(A) provide adequate notice in writing in

11 accordance with this subsection to any partici12 pant or beneficiary of any adverse coverage de13 cision with respect to benefits of such partici14 pant or beneficiary under the plan, setting forth

15 the specific reasons for such coverage decision

16 and any rights of review provided under the

17 plan, written in a manner calculated to be un18 derstood by the average participant;

19 ‘‘(B) provide such notice in writing also to

20 any treating medical care provider of such par21 ticipant or beneficiary, if such provider has

22 claimed reimbursement for any item or service

23 involved in such coverage decision, or if a claim

24 submitted by the provider initiated the pro25 ceedings leading to such decision;
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1 ‘‘(C) afford a reasonable opportunity to

2 any participant or beneficiary who is in receipt

3 of the notice of such adverse coverage decision,

4 and who files a written request for review of the

5 initial coverage decision within 90 days after re6 ceipt of the notice of the initial decision, for a

7 full and fair review of the decision by an appro8 priate named fiduciary who did not make the

9 initial decision; and

10 ‘‘(D) meet the additional requirements of

11 this subsection.

12 ‘‘(2) TIME LIMITS FOR MAKING INITIAL COV13 ERAGE DECISIONS FOR BENEFITS AND COMPLETING

14 INTERNAL APPEALS.—

15 ‘‘(A) TIME LIMITS FOR DECIDING RE16 QUESTS FOR BENEFIT PAYMENTS, REQUESTS

17 FOR ADVANCE DETERMINATION OF COVERAGE,

18 AND REQUESTS FOR REQUIRED DETERMINA19 TION OF MEDICAL NECESSITY.—Except as pro20 vided in subparagraph (B)—

21 ‘‘(i) INITIAL DECISIONS.—If a request

22 for benefit payments, a request for advance

23 determination of coverage, or a request for

24 required determination of medical necessity

25 is submitted to a group health plan in such
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1 reasonable form as may be required under

2 the plan, the plan shall issue in writing an

3 initial coverage decision on the request be4 fore the end of the initial decision period

5 under paragraph (10)(I) following the fil6 ing completion date. Failure to issue a cov7 erage decision on such a request before the

8 end of the period required under this

9 clause shall be treated as an adverse cov10 erage decision for purposes of internal re11 view under clause (ii).

12 ‘‘(ii) INTERNAL REVIEWS OF INITIAL

13 DENIALS.—Upon the written request of a

14 participant or beneficiary for review of an

15 initial adverse coverage decision under

16 clause (i), a review by an appropriate

17 named fiduciary (subject to paragraph (3))

18 of the initial coverage decision shall be

19 completed, including issuance by the plan

20 of a written decision affirming, reversing,

21 or modifying the initial coverage decision,

22 setting forth the grounds for such decision,

23 before the end of the internal review period

24 following the review filing date. Such deci25 sion shall be treated as the final decision
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1 of the plan, subject to any applicable re2 consideration under paragraph (4). Failure

3 to issue before the end of such period such

4 a written decision requested under this

5 clause shall be treated as a final decision

6 affirming the initial coverage decision.

7 ‘‘(B) TIME LIMITS FOR MAKING COVERAGE

8 DECISIONS RELATING TO ACCELERATED NEED

9 MEDICAL CARE AND FOR COMPLETING INTER10 NAL APPEALS.—

11 ‘‘(i) INITIAL DECISIONS.—A group

12 health plan shall issue in writing an initial

13 coverage decision on any request for expe14 dited advance determination of coverage or

15 for expedited required determination of

16 medical necessity submitted, in such rea17 sonable form as may be required under the

18 plan before the end of the accelerated need

19 decision period under paragraph (10)(K),

20 in cases involving accelerated need medical

21 care, following the filing completion date.

22 Failure to approve or deny such a request

23 before the end of the applicable decision

24 period shall be treated as a denial of the
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1 request for purposes of internal review

2 under clause (ii).

3 ‘‘(ii) INTERNAL REVIEWS OF INITIAL

4 DENIALS.—Upon the written request of a

5 participant or beneficiary for review of an

6 initial adverse coverage decision under

7 clause (i), a review by an appropriate

8 named fiduciary (subject to paragraph (3))

9 of the initial coverage decision shall be

10 completed, including issuance by the plan

11 of a written decision affirming, reversing,

12 or modifying the initial converge decision,

13 setting forth the grounds for the decision

14 before the end of the accelerated need deci15 sion period under paragraph (10)(K) fol16 lowing the review filing date. Such decision

17 shall be treated as the final decision of the

18 plan, subject to any applicable reconsider19 ation under paragraph (4). Failure to issue

20 before the end of the applicable decision

21 period such a written decision requested

22 under this clause shall be treated as a final

23 decision affirming the initial coverage deci24 sion.
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1 ‘‘(3) MEDICAL PROFESSIONALS MUST REVIEW

2 INITIAL COVERAGE DECISIONS INVOLVING MEDICAL

3 APPROPRIATENESS OR NECESSITY OR INVESTIGA4 TIONAL ITEMS OR EXPERIMENTAL TREATMENT OR

5 TECHNOLOGY.—If an initial coverage decision under

6 paragraph (2)(A)(i) or (2)(B)(i) is based on a deter7 mination that provision of a particular item or serv8 ice is excluded from coverage under the terms of the

9 plan because the provision of such item or service

10 does not meet the plan’s requirements for medical

11 appropriateness or necessity or would constitute in12 vestigational items or experimental treatment or

13 technology, the review under paragraph (2)(A)(ii) or

14 (2)(B)(ii), to the extent that it relates to medical ap15 propriateness or necessity or to investigational items

16 or experimental treatment or technology, shall be

17 conducted by a physician or, if appropriate, another

18 medical professional, who is selected by the plan and

19 who did not make the initial denial.

20 ‘‘(4) ELECTIVE EXTERNAL REVIEW BY INDE21 PENDENT MEDICAL EXPERT AND RECONSIDERATION

22 OF INITIAL REVIEW DECISION.—

23 ‘‘(A) IN GENERAL.—In any case in which

24 a participant or beneficiary, who has received

25 an adverse coverage decision which is not re-
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1 versed upon review conducted pursuant to para2 graph (1)(C) (including review under paragraph

3 (2)(A)(ii) or (2)(B)(ii)) and who has not com4 menced review of the coverage decision under

5 section 502, makes a request in writing, within

6 30 days after the date of such review decision,

7 for reconsideration of such review decision, the

8 requirements of subparagraphs (B), (C), (D)

9 and (E) shall apply in the case of such adverse

10 coverage decision, if the requirements of clause

11 (i), (ii), or (iii) are met.

12 ‘‘(i) MEDICAL APPROPRIATENESS OR

13 INVESTIGATIONAL ITEM OR EXPERI14 MENTAL TREATMENT OR TECHNOLOGY.—

15 The requirements of this clause are met if

16 such coverage decision is based on a deter17 mination that provision of a particular

18 item or service that would otherwise be

19 covered under the terms of the plan is ex20 cluded from coverage under the terms of

21 the plan because the provision of such item

22 or service—

23 ‘‘(I) does not meet the plan’s re24 quirements for medical appropriate25 ness or necessity; or
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1 ‘‘(II) would constitute an inves2 tigational item or experimental treat3 ment or technology.

4 ‘‘(ii) CATEGORICAL EXCLUSION OF

5 ITEM OR SERVICE REQUIRING EVALUATION

6 OF MEDICAL FACTS OR EVIDENCE.—The

7 requirements of this clause are met if—

8 ‘‘(I) such coverage decision is

9 based on a determination that a par10 ticular item or service is not covered

11 under the terms of the plan because

12 provision of such item or service is

13 categorically excluded from coverage

14 under the terms of the plan, and

15 ‘‘(II) an independent contract ex16 pert finds under subparagraph (C), in

17 advance of any review of the decision

18 under subparagraph (D), that such

19 determination primarily requires the

20 evaluation of medical facts or medical

21 evidence by a health professional.

22 ‘‘(iii) SPECIFIC EXCLUSION OF ITEM

23 OR SERVICE REQUIRING EVALUATION OF

24 MEDICAL FACTS OR EVIDENCE.—The re25 quirements of this clause are met if—
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1 ‘‘(I) such coverage decision is

2 based on a determination that a par3 ticular item or service is not covered

4 under the terms of the plan because

5 provision of such item or service is

6 specifically excluded from coverage

7 under the terms of the plan, and

8 ‘‘(II) an independent contract ex9 pert finds under subparagraph (C), in

10 advance of any review of the decision

11 under subparagraph (D), that such

12 determination primarily requires the

13 evaluation of medical facts or medical

14 evidence by a health professional.

15 ‘‘(iv) MATTERS SPECIFICALLY NOT

16 SUBJECT TO REVIEW.—The requirements

17 of subparagraphs (B), (C), (D), and (E)

18 shall not apply in the case of any adverse

19 coverage decision if such decision is based

20 on—

21 ‘‘(I) a determination of eligibility

22 for benefits,

23 ‘‘(II) the application of explicit

24 plan limits on the number, cost, or

25 duration of any benefit, or
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1 ‘‘(III) a limitation on the amount

2 of any benefit payment or a require3 ment to make copayments under the

4 terms of the plan.

5 Review under this paragraph shall not be avail6 able for any coverage decision that has pre7 viously undergone review under this paragraph.

8 ‘‘(B) LIMITS ON ALLOWABLE ADVANCE

9 PAYMENTS.—The review under this paragraph

10 in connection with an adverse coverage decision

11 shall be available subject to any requirement of

12 the plan (unless waived by the plan for financial

13 or other reasons) for payment in advance to the

14 plan by the participant or beneficiary seeking

15 review of an amount not to exceed the greater

16 of (i) the lesser of $100 or 10 percent of the

17 cost of the medical care involved in the decision,

18 or (ii) $25, with such dollar amount subject to

19 compounded annual adjustments in the same

20 manner and to the same extent as apply under

21 section 215(i) of the Social Security Act, except

22 that, for any calendar year, such amount as so

23 adjusted shall be deemed, solely for such cal24 endar year, to be equal to such amount rounded

25 to the nearest $10. No such payment may be
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1 required in the case of any participant or bene2 ficiary whose enrollment under the plan is paid

3 for, in whole or in part, under a State plan

4 under title XIX or XXI of the Social Security

5 Act. Any such advance payment shall be subject

6 to reimbursement if the recommendation of the

7 independent medical expert or experts under

8 subparagraph (D)(iii) is to reverse or modify

9 the coverage decision.

10 ‘‘(C) REQUEST TO INDEPENDENT CON11 TRACT EXPERTS FOR DETERMINATION OF

12 WHETHER COVERAGE DECISION REQUIRED

13 EVALUATION OF MEDICAL FACTS OR EVI14 DENCE.—

15 ‘‘(i) IN GENERAL.—In the case of a

16 request for review made by a participant or

17 beneficiary as described in subparagraph

18 (A), if the requirements of clause (ii) or

19 (iii) of subparagraph (A) are met (and re20 view is not otherwise precluded under sub21 paragraph (A)(iv)), the terms of the plan

22 shall provide for a procedure for initial re23 view by an independent contract expert se24 lected by the plan under which the expert

25 will determine whether the coverage deci-
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1 sion requires the evaluation of medical

2 facts or evidence by a health professional.

3 If the expert determines that the coverage

4 decision requires such evaluation, reconsid5 eration of such adverse decision shall pro6 ceed under this paragraph. If the expert

7 determines that the coverage decision does

8 not require such evaluation, the adverse

9 decision shall remain the final decision of

10 the plan.

11 ‘‘(ii) INDEPENDENT CONTRACT EX12 PERTS.—For purposes of this subpara13 graph, the term ‘independent contract ex14 pert’ means a professional—

15 ‘‘(I) who has appropriate creden16 tials and has attained recognized ex17 pertise in the applicable area of con18 tract interpretation;

19 ‘‘(II) who was not involved in the

20 initial decision or any earlier review

21 thereof; and

22 ‘‘(III) who is selected in accord23 ance with subparagraph (G)(i) and

24 meets the requirements of subpara25 graph (G)(ii).
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1 ‘‘(D) RECONSIDERATION OF INITIAL RE2 VIEW DECISION.—

3 ‘‘(i) IN GENERAL.—In the case of a

4 request for review made by a participant or

5 beneficiary as described in subparagraph

6 (A), if the requirements of subparagraph

7 (A)(i) are met or reconsideration proceeds

8 under this paragraph pursuant to subpara9 graph (C), the terms of the plan shall pro10 vide for a procedure for such reconsider11 ation in accordance with clause (ii).

12 ‘‘(ii) PROCEDURE FOR RECONSIDER13 ATION.—The procedure required under

14 clause (i) shall include the following—

15 ‘‘(I) One or more independent

16 medical experts will be selected in ac17 cordance with subparagraph (F) to re18 consider any coverage decision de19 scribed in subparagraph (A) to deter20 mine whether such decision was in ac21 cordance with the terms of the plan

22 and this title.

23 ‘‘(II) The record for review (in24 cluding a specification of the terms of

25 the plan and other criteria serving as
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1 the basis for the initial review deci2 sion) will be presented to such expert

3 or experts and maintained in a man4 ner which will ensure confidentiality

5 of such record.

6 ‘‘(III) Such expert or experts will

7 reconsider the initial review decision

8 to determine whether such decision

9 was in accordance with the terms of

10 the plan and this title. Such reconsid11 eration shall include the initial deci12 sion of the plan, the medical condition

13 of the patient, and the recommenda14 tions of the treating physician. The

15 experts shall take into account in the

16 course of such reconsideration any

17 guidelines adopted by the plan

18 through a process involving medical

19 practitioners and peer-reviewed med20 ical literature identified as such under

21 criteria established by the Food and

22 Drug Administration.

23 ‘‘(IV) Such expert or experts will

24 issue a written decision affirming,

25 modifying, or reversing the initial re-
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1 view decision, setting forth the

2 grounds for the decision.

3 ‘‘(E) TIME LIMITS FOR RECONSIDER4 ATION.—Any review under this paragraph (in5 cluding any review under subparagraph (C))

6 shall be completed before the end of the recon7 sideration period (as defined in paragraph

8 (10)(L)) following the review filing date in con9 nection with such review. The decision under

10 this paragraph affirming, reversing, or modi11 fying the initial review decision of the plan shall

12 be the final decision of the plan. Failure to

13 issue a written decision before the end of the

14 reconsideration period in any reconsideration

15 requested under this paragraph shall be treated

16 as a final decision affirming the initial review

17 decision of the plan.

18 ‘‘(F) INDEPENDENT MEDICAL EXPERTS.—

19 ‘‘(i) IN GENERAL.—For purposes of

20 this paragraph, the term ‘independent

21 medical expert’ means, in connection with

22 any coverage decision by a group health

23 plan, a professional—
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1 ‘‘(I) who is a physician or, if ap2 propriate, another medical profes3 sional;

4 ‘‘(II) who has appropriate cre5 dentials and has attained recognized

6 expertise in the applicable medical

7 field;

8 ‘‘(III) who was not involved in

9 the initial decision or any earlier re10 view thereof;

11 ‘‘(IV) who has not history of dis12 ciplinary action or sanctions (includ13 ing, but not limited to, loss of staff

14 privileges or participation restriction)

15 taken or pending by any hospital,

16 health carrier, government, or regu17 latory body; and

18 ‘‘(V) who is selected in accord19 ance with subparagraph (G)(i) and

20 meets the requirements of subpara21 graph (G)(ii).

22 ‘‘(G) SELECTION OF EXPERTS.—

23 ‘‘(i) IN GENERAL.—An independent

24 contract expert or independent medical ex-
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1 pert is selected in accordance with this

2 clause if—

3 ‘‘(I) the expert is selected by an

4 intermediary which itself meets the re5 quirements of clause (ii), by means of

6 a method which ensures that the iden7 tity of the expert is not disclosed to

8 the plan, any health insurance issuer

9 offering health insurance coverage to

10 the aggrieved participant or bene11 ficiary in connection with the plan,

12 and the aggrieved participant or bene13 ficiary under the plan, and the identi14 ties of the plan, the issuer, and the

15 aggrieved participant or beneficiary

16 are not disclosed to the expert; or

17 ‘‘(II) the expert is selected, by an

18 intermediary or otherwise, in a man19 ner that is, under regulations issued

20 pursuant to negotiated rulemaking,

21 sufficient to ensure the expert’s inde22 pendence, including selection by the

23 plan in cases where it is determined

24 that a suitable intermediary is not

25 reasonably available,
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1 and the method of selection is devised to

2 reasonably ensure that the expert selected

3 meets the independence requirements of

4 clause (ii).

5 ‘‘(ii) INDEPENDENCE REQUIRE6 MENTS.—An independent contract expert

7 or independent medical expert or another

8 entity described in clause (i) meets the

9 independence requirements of this clause

10 if—

11 ‘‘(I) the expert or entity is not

12 affiliated with any related party;

13 ‘‘(II) any compensation received

14 by such expert or entity in connection

15 with the external review is reasonable

16 and not contingent on any decision

17 rendered by the expert or entity;

18 ‘‘(III) under the terms of the

19 plan and any health insurance cov20 erage offered in connection with the

21 plan, the plan and the issuer (if any)

22 have no recourse against the expert or

23 entity in connection with the external

24 review; and
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1 ‘‘(IV) the expert or entity does

2 not otherwise have a conflict of inter3 est with a related party as determined

4 under any regulations which the Sec5 retary may prescribe.

6 ‘‘(iii) RELATED PARTY.—For pur7 poses of clause (i)(I), the term ‘related

8 party’ means—

9 ‘‘(I) the plan or any health insur10 ance issuer offering health insurance

11 coverage in connection with the plan

12 (or any officer, director, or manage13 ment employee of such plan or issuer);

14 ‘‘(II) the physician or other med15 ical care provider that provided the

16 medical care involved in the coverage

17 decision;

18 ‘‘(III) the institution at which

19 the medical care involved in the cov20 erage decision is provided;

21 ‘‘(IV) the manufacturer of any

22 drug or other item that was included

23 in the medical care involved in the

24 coverage decision; or
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1 ‘‘(V) any other party determined

2 under any regulations which the Sec3 retary may prescribe to have a sub4 stantial interest in the coverage deci5 sion.

6 ‘‘(iv) AFFILIATED.—For purposes of

7 clause (ii)(I), the term ‘affiliated’ means,

8 in connection with any entity, having a fa9 milial, financial, or professional relation10 ship with, or interest in, such entity.

11 ‘‘(H) MISBEHAVIOR BY EXPERTS.—Any

12 action by the expert or experts in applying for

13 their selection under this paragraph or in the

14 course of carrying out their duties under this

15 paragraph which constitutes—

16 ‘‘(i) fraud or intentional misrepresen17 tation by such expert or experts, or

18 ‘‘(ii) demonstrates failure to adhere to

19 the standards for selection set forth in sub20 paragraph (G)(ii),

21 shall be treated as a failure to meet the require22 ments of this paragraph and therefore as a

23 cause of action which may be brought by a fidu24 ciary under section 502(a)(3).
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1 ‘‘(5) PERMITTED ALTERNATIVES TO REQUIRED

2 INTERNAL REVIEW.—

3 ‘‘(A) IN GENERAL.—In accordance with

4 such regulations (if any) as may be prescribed

5 by the Secretary for purposes of this paragraph,

6 in the case of any initial coverage decision for

7 benefits under paragraph (2)(A)(ii) or

8 (2)(B)(ii), a group health plan may provide an

9 alternative dispute resolution procedure meeting

10 the requirements of subparagraph (B) for use

11 in lieu of the procedures set forth under the

12 preceding provisions of this subsection relating

13 review of such decision. Such procedure may be

14 provided in one form for all participants and

15 beneficiaries or in a different form each group

16 of similarly situated participants and bene17 ficiaries.

18 ‘‘(B) REQUIREMENTS.—An alternative dis19 pute resolution procedure meets the require20 ments of this subparagraph, in connection with

21 any initial coverage decision, if—

22 ‘‘(i) such procedure is utilized solely—

23 ‘‘(I) accordance with the applica24 ble terms of a bona fide collective bar25 gaining agreement pursuant to which
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1 the plan (or the applicable portion

2 thereof governed by the agreement) is

3 established or maintained, or

4 ‘‘(II) upon election by all parties

5 to such decision,

6 ‘‘(ii) the procedure incorporates time

7 limits not exceeding the time limits other8 wise applicable under paragraphs (2)(A)(ii)

9 and (2)(B)(ii);

10 ‘‘(iii) the procedure incorporates any

11 otherwise applicable requirement for review

12 by a physician under paragraph (3), unless

13 waived by the participant or beneficiary (in

14 a manner consistent with such regulations

15 as the Secretary may prescribe to ensure

16 equitable procedures); and

17 ‘‘(iv) the means of resolution of dis18 pute allow for adequate presentation by

19 each party of scientific and medical evi20 dence supporting the position of such

21 party.

22 ‘‘(C) WAIVERS.—In any case in which uti23 lization of the alternative dispute resolution

24 procedure is voluntarily elected by all parties in

25 connection with a coverage decision, the plan
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1 may require or allow under such procedure (in

2 a manner consistent with such regulations as

3 the Secretary may prescribe to ensure equitable

4 procedures) any party to waive review of the

5 coverage decision under paragraph (3), to waive

6 further review of the coverage decision under

7 paragraph (4) or section 502, and to elect an

8 alternative means of external review (other than

9 review under paragraph (4)).

10 ‘‘(6) PERMITTED ALTERNATIVES TO REQUIRED

11 EXTERNAL REVIEW.—A group health plan shall not

12 be treated as failing to meet the requirements of this

13 subsection in connection with review of coverage de14 cisions under paragraph (4) if the aggrieved partici15 pant or beneficiary elects to utilize a procedure in

16 connection with such review which is made generally

17 available under the plan (in a manner consistent

18 with such regulations as the Secretary may prescribe

19 to ensure equitable procedures) under which—

20 ‘‘(A) the plan agrees in advance of the rec21 ommendations of the independent medical ex22 pert or experts under paragraph (4)(C)(iii) to

23 render a final decision in accordance with such

24 recommendations; and
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1 ‘‘(B) the participant or beneficiary waives

2 in advance any right to review of the final deci3 sion under section 502.

4 ‘‘(7) REVIEW REQUIREMENTS.—In any review

5 of a decision issued under this subsection—

6 ‘‘(A) the record below shall be maintained

7 for purposes of review in accordance with

8 standards which shall be prescribed in regula9 tions of the Secretary designed to facilitate

10 such review, and

11 ‘‘(B) any decision upon review which modi12 fies or reverses a decision below shall specifi13 cally set forth a determination that the record

14 upon review is sufficient to rebut a presumption

15 in favor of the decision below.

16 ‘‘(8) COMPLIANCE WITH FIDUCIARY STAND17 ARDS.—The issuance of a decision under a plan

18 upon review in good faith compliance with the re19 quirements of this subsection shall not be treated as

20 a violation of part 4.

21 ‘‘(9) GROUP HEALTH PLAN DEFINED.—For

22 purposes of this section—

23 ‘‘(A) IN GENERAL.—The term ‘group

24 health plan’ shall have the meaning provided in

25 section 733(a).
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1 ‘‘(B) TREATMENT OF PARTNERSHIPS.—

2 The provisions of paragraphs (1), (2), and (3)

3 of section 732(d) shall apply.

4 ‘‘(10) OTHER DEFINITIONS.—For purposes of

5 this subsection—

6 ‘‘(A) REQUEST FOR BENEFIT PAY7 MENTS.—The term ‘request for benefit pay8 ments’ means a request, for payment of benefits

9 by a group health plan for medical care, which

10 is made by, or (if expressly authorized) on be11 half of, a participant or beneficiary after such

12 medical care has been provided.

13 ‘‘(B) REQUIRED DETERMINATION OF MED14 ICAL NECESSITY.—The term ‘required deter15 mination of medical necessity’ means a deter16 mination required under a group health plan

17 solely that proposed medical care meets, under

18 the facts and circumstances at the time of the

19 determination, the plan’s requirements for med20 ical appropriateness or necessity (which may be

21 subject to exceptions under the plan for fraud

22 or misrepresentation), irrespective of whether

23 the proposed medical care otherwise meets

24 other terms and conditions of coverage, but

25 only if such determination does not constitute
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1 an advance determination of coverage (as de2 fined in subparagraph (C)).

3 ‘‘(C) ADVANCE DETERMINATION OF COV4 ERAGE.—The term ‘advance determination of

5 coverage’ means a determination under a group

6 health plan that proposed medical care meets,

7 under the facts and circumstances at the time

8 of the determination, the plan’s terms and con9 ditions of coverage (which may be subject to ex10 ceptions under the plan for fraud or misrepre11 sentation).

12 ‘‘(D) REQUEST FOR ADVANCE DETERMINA13 TION OF COVERAGE.—The term ‘request for ad14 vance determination of coverage’ means a re15 quest for an advance determination of coverage

16 of medical care which is made by, or (if ex17 pressly authorized) on behalf of, a participant

18 or beneficiary before such medical care is pro19 vided.

20 ‘‘(E) REQUEST FOR EXPEDITED ADVANCE

21 DETERMINATION OF COVERAGE.—The term ‘re22 quest for expedited advance determination of

23 coverage’ means a request for advance deter24 mination of coverage, in any case in which the
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1 proposed medical care constitutes accelerated

2 need medical care.

3 ‘‘(F) REQUEST FOR REQUIRED DETER4 MINATION OF MEDICAL NECESSITY.—The term

5 ‘request for required determination of medical

6 necessity’ means a request for a required deter7 mination of medical necessity for medical care

8 which is made by or on behalf of a participant

9 or beneficiary before the medical care is pro10 vided.

11 ‘‘(G) REQUEST FOR EXPEDITED REQUIRED

12 DETERMINATION OF MEDICAL NECESSITY.—

13 The term ‘request for expedited required deter14 mination of medical necessity’ means a request

15 for required determination of medical necessity

16 in any case in which the proposed medical care

17 constitutes accelerated need medical care.

18 ‘‘(H) ACCELERATED NEED MEDICAL

19 CARE.—The term ‘accelerated need medical

20 care’ means medical care in any case in which

21 an appropriate physician has certified in writing

22 (or as otherwise provided in regulations of the

23 Secretary) that the participant or beneficiary is

24 stabilized and—
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1 ‘‘(i) that failure to immediately pro2 vide the care to the participant or bene3 ficiary could reasonably be expected to re4 sult in—

5 ‘‘(I) placing the health of such

6 participant or beneficiary (or, with re7 spect to such a participant or bene8 ficiary who is a pregnant woman, the

9 health of the woman or her unborn

10 child) in serious jeopardy;

11 ‘‘(II) serious impairment to bod12 ily functions; or

13 ‘‘(III) serious dysfunction of any

14 bodily organ or part; or

15 ‘‘(ii) that immediate provision of the

16 care is necessary because the participant

17 or beneficiary has made or is at serious

18 risk of making an attempt to harm himself

19 or herself or another individual.

20 ‘‘(I) INITIAL DECISION PERIOD.—The term

21 ‘initial decision period’ means a period of 30

22 days, or such longer period as may be pre23 scribed in regulations of the Secretary.

24 ‘‘(J) INTERNAL REVIEW PERIOD.—The

25 term ‘internal review period’ means a period of
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1 30 days, or such longer period as may be pre2 scribed in regulations of the Secretary.

3 ‘‘(K) ACCELERATED NEED DECISION PE4 RIOD.—The term ‘accelerated need decision pe5 riod’ means a period of 5 days, or such longer

6 period as may be prescribed in regulations of

7 the Secretary.

8 ‘‘(L) RECONSIDERATION PERIOD.—The

9 term ‘reconsideration period’ means a period of

10 25 days, or such longer period as may be pre11 scribed in regulations of the Secretary, except

12 that—

13 ‘‘(i) in the case of a decision involving

14 urgent medical care, such term means the

15 urgent decision period; and

16 ‘‘(ii) in the case of a decision involving

17 accelerated need medical care, such term

18 means the accelerated need decision period.

19 ‘‘(M) FILING COMPLETION DATE.—The

20 term ‘filing completion date’ means, in connec21 tion with a group health plan, the date as of

22 which the plan is in receipt of all information

23 reasonably required (in writing or in such other

24 reasonable form as may be specified by the

25 plan) to make an initial coverage decision.
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1 ‘‘(N) REVIEW FILING DATE.—The term

2 ‘review filing date’ means, in connection with a

3 group health plan, the date as of which the ap4 propriate named fiduciary (or the independent

5 medical expert or experts in the case of a review

6 under paragraph (4)) is in receipt of all infor7 mation reasonably required (in writing or in

8 such other reasonable form as may be specified

9 by the plan) to make a decision to affirm, mod10 ify, or reverse a coverage decision.

11 ‘‘(O) MEDICAL CARE.—The term ‘medical

12 care’ has the meaning provided such term by

13 section 733(a)(2).

14 ‘‘(P) HEALTH INSURANCE COVERAGE.—

15 The term ‘health insurance coverage’ has the

16 meaning provided such term by section

17 733(b)(1).

18 ‘‘(Q) HEALTH INSURANCE ISSUER.—The

19 term ‘health insurance issuer’ has the meaning

20 provided such term by section 733(b)(2).

21 ‘‘(R) WRITTEN OR IN WRITING.—

22 ‘‘(i) IN GENERAL.—A request or deci23 sion shall be deemed to be ‘written’ or ‘in

24 writing’ if such request or decision is pre25 sented in a generally recognized printable
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1 or electronic format. The Secretary may by

2 regulation provide for presentation of in3 formation otherwise required to be in writ4 ten form in such other forms as may be

5 appropriate under the circumstances.

6 ‘‘(ii) MEDICAL APPROPRIATENESS OR

7 INVESTIGATIONAL ITEMS OR EXPERI8 MENTAL TREATMENT DETERMINATIONS.—

9 For purposes of this subparagraph, in the

10 case of a request for advance determina11 tion of coverage, a request for expedited

12 advance determination of coverage, a re13 quest for required determination of medical

14 necessity, or a request for expedited re15 quired determination of medical necessity,

16 if the decision on such request is conveyed

17 to the provider of medical care or to the

18 participant or beneficiary by means of tele19 phonic or other electronic communications,

20 such decision shall be treated as a written

21 decision.’’.

22 SEC. 3. CLARIFICATION OF ERISA PREEMPTION RULES.

23 (a) IN GENERAL.—Section 514 of the Employee Re24 tirement Income Security Act of 1974 (29 U.S.C. 1144)

25 is amended—
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1 (1) by redesignating subsection (d) as sub2 section (e); and

3 (2) by inserting after subsection (c) the fol4 lowing new subsection:

5 ‘‘(d) The procedures and remedies required or pro6 vided under sections 502 and 503 in connection with—

7 ‘‘(1) review of claims for benefits under em8 ployee benefit plans and for review of decisions deny9 ing such claims (including review of coverage deci10 sions referred to in section 503(b) and decisions

11 upon review of such coverage decisions), and

12 ‘‘(2) causes of action brought to recover plan

13 benefits, to enforce rights under the terms of the

14 plan or this title, or to clarify rights to future bene15 fits under the terms of the plan or this title,

16 are the exclusive procedures and remedies with respect to

17 any such review or cause of action and supersede any pro18 vision of State law providing for any such review or cause

19 of action.’’.

20 (b) CONFORMING AMENDMENT.—Section

21 514(b)(2)(A) of such Act (42 U.S.C. 1144(b)(2)(A)) is

22 amended by inserting ‘‘or subsection (d)’’ after ‘‘subpara23 graph (B)’’.
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1 SEC. 4. EFFECTIVE DATE.

2 (a) IN GENERAL.—The amendments made by this

3 Act shall apply with respect to grievances arising in plan

4 years beginning on or after January 1 of the second cal5 endar year following 12 months after the date the Sec6 retary of Labor issues all regulations necessary to carry

7 out amendments made by this Act.

8 (b) LIMITATION ON ENFORCEMENT ACTIONS.—No

9 enforcement action shall be taken, pursuant to the amend10 ments made by this Act, against a group health plan or

11 health insurance issuer with respect to a violation of a re12 quirement imposed by such amendments before the date

13 of issuance of final regulations issued in connection with

14 such requirement, if the plan or issuer has sought to com15 ply in good faith with such requirement.

16 (c) COLLECTIVE BARGAINING AGREEMENTS.—Any

17 plan amendment made pursuant to a collective bargaining

18 agreement relating to the plan which amends the plan

19 solely to conform to any requirement added by this Act

20 shall not be treated as a termination of such collective bar21 gaining agreement.

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