I

106TH CONGRESS

1ST SESSION H. R. 216

To amend the Public Health Service Act and the Employee Retirement

Income Security Act of 1974 to protect consumers in managed care

plans and preserve against preemption certain State causes of action.

IN THE HOUSE OF REPRESENTATIVES

JANUARY 6, 1999

Mr. NORWOOD introduced the following bill; which was referred to the Committee on Commerce, and in addition to the Committee on Education and

the Workforce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL

To amend the Public Health Service Act and the Employee

Retirement Income Security Act of 1974 to protect consumers in managed care plans and preserve against preemption certain State causes of action.

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; TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Access to Quality Care Act of 1999’’.

6 (b) TABLE OF CONTENTS.—The table of contents of

7 this Act is as follows:
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Sec. 1. Short title; table of contents.

TITLE I—ACCESS TO QUALITY CARE

Subtitle A—Promoting Quality Care by Ensuring Access to Health Care

Professionals

Sec. 101. Consumer choice option.

Sec. 102. Choice of health professionals and providers.

Sec. 103. Access to care.

Sec. 104. Exclusions.

Subtitle B—Promoting Quality Care by Ensuring Access to Health Care

Services.

Sec. 111. Access to specialists.

Sec. 112. Continuity of care.

Sec. 113. Access to emergency room care.

Sec. 114. Patient access to obstetric and gynecological care.

Sec. 115. Patient access to pediatric care.

Sec. 116. Exclusions.

Subtitle C—Promoting Quality Care by Ensuring Fair Resolution of

Grievances.

Sec. 121. Utilization review standards.

Sec. 122. Internal and external review procedures.

Subtitle D—Promoting Quality Care by Ensuring Fair Plan Administration.

Sec. 131. Restrictions on incentive plans.

Sec. 132. Development of issuer policies.

Sec. 133. Patient access to information.

Sec. 134. Protection of patient confidentiality.

Sec. 135. Due process for health professionals and providers.

Sec. 136. Prohibition of interference with certain medical communications.

Sec. 137. Plan solvency.

Sec. 138. Quality assessment program.

Subtitle E—Definitions

Sec. 151. Definitions.

Sec. 152. Preemption; State flexibility; construction.

Sec. 153. Regulations.

TITLE II—APPLICATION OF QUALITY CARE STANDARDS TO

GROUP HEALTH PLANS AND HEALTH INSURANCE COVERAGE

UNDER PUBLIC HEALTH SERVICE ACT

Sec. 201. Application to group health plans and group health insurance coverage.

Sec. 202. Application to individual health insurance coverage.

TITLE III—AMENDMENTS TO THE EMPLOYEE RETIREMENT

INCOME SECURITY ACT OF 1974

Sec. 301. Application of patient protection standards to group health plans and

group health insurance coverage under the Employee Retirement Income Security Act of 1974.
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Sec. 302. ERISA preemption not to apply to certain actions involving health insurance policyholders.

TITLE IV—EFFECTIVE DATES; COORDINATION IN

IMPLEMENTATION

Sec. 401. Effective dates.

Sec. 402. Coordination in implementation.

1 TITLE I—ACCESS TO QUALITY

2 CARE

3 Subtitle A—Promoting Quality

4 Care by Ensuring Access to

5 Health Care Professionals

6 SEC. 101. CONSUMER CHOICE OPTION.

7 (a) IN GENERAL.—If a health insurance issuer offers

8 to enrollees health insurance coverage which provides for

9 coverage of services only if such services are furnished

10 through health professionals and providers who are mem11 bers of a network of health professionals and providers

12 who have entered into a contract with the issuer to provide

13 such services, the issuer shall also offer to such enrollees

14 (at the time of enrollment) the option of health insurance

15 coverage which provides for coverage of such services

16 which are not furnished through health professionals and

17 providers who are members of such a network unless en18 rollees are offered such non-network coverage through an19 other health insurance issuer.

20 (b) FAIR PREMIUMS.—The amount of any additional

21 premium required for the additional cost of the option de22 scribed in subsection (a) may not exceed an amount that
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1 is fair and reasonable, as established by the applicable

2 State authority, in consultation with the National Associa3 tion of Insurance Commissioners, based on the nature of

4 the additional coverage provided.

5 (c) ADDITIONAL COSTS.—The amount of any addi6 tional premium charged by the health insurance issuer for

7 the additional cost of the creation and maintenance of the

8 option described in subsection (a) shall be borne by the

9 enrollee unless it is paid by the health plan sponsor

10 through agreement with the health insurance issuer.

11 (d) OPEN SEASON.—An enrollee may only change to

12 the offering provided under this section only during a time

13 period determined by the health insurance issuer. Such

14 time period shall occur at least annually.

15 (e) COST SHARING.—Under the option described in

16 subsection (a), the health insurance coverage shall provide

17 for reimbursement rates for covered services offered by

18 health professionals and providers who are not participat19 ing health professionals or providers that are not less than

20 the reimbursement rates for covered services offered by

21 participating health professionals and providers. Nothing

22 in this section shall be construed as protecting an enrollee

23 against balance billing by a health professional or provider

24 that is not a participating health professional or provider.
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1 SEC. 102. CHOICE OF HEALTH PROFESSIONALS AND PRO2 VIDERS.

3 (a) CHOICE OF PERSONAL HEALTH PROFES4 SIONAL.—A group health plan, and a health insurance

5 issuer that offers health insurance coverage, shall permit

6 each participant, beneficiary, and enrollee to—

7 (1) select a personal health professional from

8 among the participating health professionals of the

9 issuer, and

10 (2) change such selection—

11 (A) in the event of a disciplinary complaint

12 against the provider; or

13 (B) at least once every 4 months.

14 SEC. 103. ACCESS TO CARE.

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

16 insurance issuer that offers health insurance coverage

17 shall establish and maintain adequate arrangements, as

18 defined by the applicable State authority, with a sufficient

19 number, mix, and distribution of health professionals and

20 providers to assure that covered items and services are

21 available and accessible to each participant, beneficiary,

22 and enrollee under health insurance coverage—

23 (1) in the service area of the issuer;

24 (2) in a variety of sites of service;

25 (3) with reasonable promptness (including rea26 sonable hours of operation and after hours services);
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1 (4) with reasonable proximity to the residences

2 or workplaces of enrollees; and

3 (5) in a manner that—

4 (A) takes into account the diverse needs of

5 enrollees, and

6 (B) reasonably assures continuity of care.

7 A group health plan, and a health insurance issuer

8 that offers health insurance coverage that serves a

9 rural or medically underserved area shall be treated

10 as meeting the requirement of this subsection if the

11 plan or issuer has arrangements with a sufficient

12 number, mix, and distribution of health professionals

13 and providers having a history of serving such areas.

14 The use of telemedicine and other innovative means

15 to provide covered items and services by a group

16 health plan, and a health insurance issuer that of17 fers health insurance coverage that serves a rural or

18 medically under served area shall also be considered

19 in determining whether the requirement of this sub20 section is met.

21 (b) RULE OF CONSTRUCTION.—Nothing in this sub22 section shall be construed as requiring a group health

23 plan, and a health insurance issuer that offers health in24 surance coverage—
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1 (1) to have arrangements that conflict with its

2 responsibilities to establish measures designed to

3 maintain quality and control costs; or

4 (2) to build or establish health care facilities to

5 meet the requirements of this sub section.

6 (c) DEFINITIONS.—For purposes of this section:

7 (1) MEDICALLY UNDERSERVED AREA.—The

8 term medically underserved area means an area that

9 is designated as a health professional shortage area

10 under section 332 of the Public Health Service Act

11 or as a medically underserved area for purposes of

12 section 330 or 1302(7) of such Act.

13 (2) RURAL AREA.—The term rural area means

14 an area that is not within a Standard Metropolitan

15 Statistical Area or a New England County Metro16 politan Area (as defined by the Office of Manage17 ment and Budget).

18 (d) IMPLEMENTATION.—The Secretary shall submit

19 to Congress not later than January 1, 2000, a report de20 tailing regulations and a plan for implementation of the

21 details of this section. Such regulations and plan for im22 plementation shall not proceed without the concurrence by

23 joint resolution or Act of the Congress.

24 SEC. 104. EXCLUSIONS.

25 Nothing in this subtitle shall be construed—
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1 (1) to require a group health plan, and a health

2 insurance issuer offering health insurance

3 coverage—

4 (A) to provide particular benefits other

5 than those provided under the terms of such

6 coverage; or

7 (B) to comply with this subtitle with re8 spect to abortion services or euthanasia serv9 ices, even if the issuer covers such services;

10 (2) as forbidding a plan or issuer from offering

11 (or requiring a plan or issuer to offer) abortion or

12 euthanasia services; or

13 (3) as applying to a fee-for-service plan.

14 Subtitle B—Promoting Quality

15 Care by Ensuring Access to

16 Health Care Services

17 SEC. 111. ACCESS TO SPECIALISTS.

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

19 insurance issuer that offers health insurance coverage that

20 provides benefits, in whole or in part, through participat21 ing health care providers shall demonstrate that partici22 pants, beneficiaries, and enrollees have access to a special23 ist when treatment by such specialist is medically or clini24 cally indicated in the professional judgment of the treating
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1 health professional, in consultation with the participant,

2 beneficiary, or enrollee.

3 (b) DEFINITION.—For purposes of subsection (a),

4 the term ‘‘specialist’’ means a health professional or pro5 vider (including a specialty institution) that, through

6 training or experience, has developed the expertise nec7 essary to treat individuals with special health care needs

8 or a chronic condition or disease.

9 SEC. 112. CONTINUITY OF CARE.

10 A group health plan, and a health insurance issuer

11 offer health insurance coverage that provides benefits, in

12 whole or in part, through participating health care profes13 sionals shall—

14 (1) ensure that any process established by the

15 issuer to coordinate care and control costs does not

16 create an undue burden, as defined by the applicable

17 State authority, for participants, beneficiaries, and

18 enrollees with special health care needs or chronic

19 conditions;

20 (2) ensure direct access to relevant specialists

21 for the continued care of participants, beneficiaries,

22 and enrollees when medically or clinically indicated

23 in the judgment of the treating health professional,

24 in consultation with the participant, beneficiary, or

25 enrollee;
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1 (3) in the case of a participant, beneficiary, or

2 enrollee with special health care needs or a chronic

3 condition, determine whether, based on the judgment

4 of the treating health professional, in consultation

5 with the participant, beneficiary, or enrollee, it is

6 medically or clinically necessary to use a specialist or

7 a care coordinator from an interdisciplinary team to

8 ensure continuity of care; and

9 (4) in circumstances under which a change of

10 health professional or provider might disrupt the

11 continuity of care for a participant, beneficiary, or

12 enrollee, provide for continued coverage of items and

13 services furnished by the health professional or pro14 vider that was treating the participant, beneficiary,

15 or enrollee before such change for a reasonable pe16 riod of time.

17 A change of health professional or provider may be due

18 to changes in the membership of an issuer’s health profes19 sional and provider network, changes in the health cov20 erage made available by an employer, or other similar cir21 cumstances.

22 SEC. 113. ACCESS TO EMERGENCY ROOM CARE.

23 (a) EMERGENCY CARE.—

24 (1) IN GENERAL.—If a group health plan, or a

25 health insurance issuer offering health insurance
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1 coverage provides any benefits with respect to emer2 gency services (as defined in subsection (b)(2)), the

3 plan or issuer shall cover emergency services fur4 nished under the plan or coverage—

5 (A) without the need for any prior author6 ization determination;

7 (B) whether or not the health care profes8 sional or provider furnishing such services is a

9 participating professional or provider with re10 spect to such services;

11 (C) in a manner so that, if such services

12 are provided to a participant, beneficiary, or en13 rollee by a non-participating health care profes14 sional or provider, the participant, beneficiary,

15 or enrollee is not liable for an amount that ex16 ceeds the amount of financial liability that

17 would be incurred if the services were provided

18 by a participating health care professional or

19 provider; and

20 (D) without regard to any other term or

21 condition of such plan or coverage (other than

22 exclusion or coordination of benefits, or an af23 filiation or waiting period, permitted under sec24 tion 2701 of the Public Health Service Act, sec25 tion 701 of the Employee Retirement Income
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1 Security Act of 1974, and other than applicable

2 through cost-sharing).

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

4 (1) EMERGENCY MEDICAL CONDITION.—The

5 term ‘‘emergency medical condition’’ means a medi6 cal condition (including emergency labor and deliv7 ery) manifesting itself by acute symptoms of suffi8 cient severity (including, but not limited to, severe

9 pain) such that a prudent layperson, who possesses

10 an average knowledge of health and medicine, could

11 reasonably expect the absence of immediate medical

12 attention to result in a condition described in clause

13 (i), (ii), or (iii) of section 1867(e)(1)(A) of the Social

14 Security Act.

15 (2) EMERGENCY SERVICES.—The term ‘‘emer16 gency services’’ means—

17 (A) a medical screening examination (as

18 required under section 1867 of the Social Secu19 rity Act) that is within the capabilities of the

20 emergency department of a hospital, including

21 ancillary services routinely available to the

22 emergency department to evaluate an emer23 gency medical condition (as defined in para24 graph (1)), and
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1 (B) within the capabilities of the staff and

2 facilities available at the hospital, such further

3 medical examination and treatment as required

4 under section 1867 of such Act to stabilize the

5 patient.

6 (3) STABILIZE.—The term ‘‘to stabilize’’

7 means, with respect to an emergency medical condi8 tion, to provide such medical treatment of the condi9 tion as may be necessary to assure, within reason10 able medical probability, that no material deteriora11 tion of the condition is likely to result from or occur

12 during the transfer of the individual from a facility.

13 (c) REIMBURSEMENT FOR MAINTENANCE CARE AND

14 POST-STABILIZATION CARE.—In the case of services

15 (other than emergency services) for which benefits are

16 available under a group health plan or health insurance

17 issuer offering health insurance coverage, the plan or

18 issuer shall provide for reimbursement with respect to

19 such services provided to a participant, beneficiary, or en20 rollee other than through a participating health care pro21 fessional or provider in a manner consistent with sub22 section (a)(1)(C) if the services are maintenance care or

23 post-stabilization care covered under the guidelines estab24 lished under section 1852(d)(2) of the Social Security Act

25 (relating to promoting efficient and timely coordination of
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1 appropriate maintenance and post-stabilization care of an

2 enrollee after an enrollee has been determined to be sta3 ble), in accordance with regulations established to carry

4 out such section.

5 SEC. 114. PATIENT ACCESS TO OBSTETRIC AND GYNECO6 LOGICAL CARE.

7 (a) IN GENERAL.—In any case in which a group

8 health plan or a health insurance issuer in connection with

9 the provision of health insurance coverage, requires or pro10 vides for designation by a participant, beneficiary, or en11 rollee of a participating primary care provider, and pro12 vides benefits under the terms of the plan consisting of—

13 (1) routine gynecological care (such as preven14 tive women’s health examinations), or

15 (2) routine obstetric care (such as routine preg16 nancy-related services), provided by a participating

17 professional who specializes in such care (or provides

18 benefits consisting of payment for such care),

19 if the primary care provider designated by such a partici20 pant, beneficiary, or enrollee is not such a professional,

21 then the plan or issuer shall meet the requirements of sub22 section (b).

23 (b) REQUIREMENTS.—A group health plan, or a

24 health insurance issuer in connection with the provision

25 of health insurance coverage, meets the requirements of
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1 this paragraph, in connection with benefits described in

2 subsection (a), if the plan or issuer—

3 (1) does not require authorization or a referral

4 by the primary care provider in order to obtain such

5 benefits, and

6 (2) treats the ordering of other routine care of

7 the same type, by the participating professional pro8 viding the care described in subsection (a) as the au9 thorization of the primary care provider with respect

10 to such care.

11 (c) CONSTRUCTION.—Nothing in subsection (b) shall

12 waive any exclusions of coverage under the terms of the

13 plan with respect to coverage of gynecological or obstetric

14 care so ordered.

15 SEC. 115. PATIENT ACCESS TO PEDIATRIC CARE.

16 (a) IN GENERAL.—In any case in which a group

17 health plan, or a health insurance issuer in connection

18 with the provision of health insurance coverage, provides

19 benefits consisting of routine pediatric care provided by

20 a participating physician who specializes in pediatrics (or

21 consisting of payment for such care) and the plan or issuer

22 requires or provides for designation by a participant, bene23 ficiary, or enrollee of a participating primary care pro24 vider, the plan or issuer shall provide that such a partici25 pating physician may be designated, if available, by a par-
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1 ent or guardian of any beneficiary under the plan who is

2 under 18 years of age, as the primary care provider with

3 respect to any such benefits.

4 (b) CONSTRUCTION.—Nothing in subsection (a) shall

5 waive any exclusions of coverage under the terms of the

6 plan with respect to coverage of pediatric care.

7 SEC. 116. EXCLUSIONS.

8 Nothing in this subtitle shall be construed—

9 (1) to require a group health plan, and a health

10 insurance issuer offering health insurance

11 coverage—

12 (A) to provide particular benefits other

13 than those provided under the terms of such

14 coverage; or

15 (B) to comply with this subtitle with re16 spect to abortion services or euthanasia serv17 ices, even if the issuer covers such services;

18 (2) as forbidding a plan or issuer from offering

19 (or requiring a plan or issuer to offer) abortion or

20 euthanasia services; or

21 (3) as applying to a fee-for-service plan.
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1 Subtitle C—Promoting Quality

2 Care by Ensuring Fair Resolu3 tion of Grievances

4 SEC. 121. UTILIZATION REVIEW STANDARDS.

5 The utilization review program of a group health

6 plan, and a health insurance issuer that provides health

7 insurance coverage, shall—

8 (1) be developed (including any screening cri9 teria used by such program) with the involvement of

10 participating health professionals and providers;

11 (2) to the extent consistent with the protection

12 of proprietary business information (as defined for

13 purposes of section 552 of title 5, United States

14 Code) release, upon request, to affected health pro15 fessionals, providers, and enrollees the screening cri16 teria, weighting elements, and computer algorithms

17 used in reviews and a description of the method by

18 which they were developed;

19 (3) uniformly apply review criteria;

20 (4) subject to reasonable safeguards, disclose to

21 health professionals and providers and enrollees,

22 upon request, the names and credentials of individ23 uals conducting utilization review;

24 (5) not compensate individuals conducting utili25 zation review under a system that provides financial
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1 or other incentives or bonuses for denials of payment

2 or coverage of benefits;

3 (6) comply with the requirement of section 113

4 that prior authorization not be required for emer5 gency and related services furnished in a hospital

6 emergency department; and

7 (7) provide timely access, as defined by the ap8 plicable State authority, to utilization review person9 nel and, if such personnel are not available, waives

10 any prior authorization that would otherwise be re11 quired.

12 SEC. 122. INTERNAL AND EXTERNAL REVIEW PROCEDURES.

13 (a) COVERAGE DETERMINATIONS.—A group health

14 plan and a health insurance issuer offering health insur15 ance coverage shall—

16 (1) provide notice in writing in accordance with

17 this section to any participant or beneficiary in a

18 group health plan, or any enrollee in health insur19 ance coverage offered by a health insurance issuer,

20 of any adverse coverage decision with respect to ben21 efits of such participant, beneficiary, or enrollee, set22 ting forth the specific reasons for such coverage de23 cision and any rights of review, written in a manner

24 calculated to be understood by the participant, bene25 ficiary, or enrollee;
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1 (2) provide written notice to any treating health

2 care professional of such participant, beneficiary, or

3 enrollee if such professional has claimed reimburse4 ment for any item or service involved in such cov5 erage decision, or if a claim submitted by the profes6 sional initiated the proceedings leading to such deci7 sion;

8 (3) afford an opportunity to any participant,

9 beneficiary, or enrollee who is in receipt of the notice

10 of such adverse coverage decision and who files a

11 written request for review of the initial coverage de12 cision within 180 days after receipt of the notice of

13 the initial decision, for a full and fair de novo review

14 of the decision by a person who did not make the

15 initial decision; and

16 (4) meet the additional requirements of this

17 section.

18 (b) TIME LIMITS FOR MAKING INITIAL COVERAGE

19 DECISIONS FOR BENEFITS AND COMPLETING INTERNAL

20 APPEALS.—

21 (1) TIME LIMITS FOR DECIDING REQUESTS FOR

22 BENEFIT PAYMENTS AND REQUESTS FOR ADVANCE

23 DETERMINATION OF COVERAGE.—Except as pro24 vided in paragraph (2)—
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1 (A) INITIAL DECISIONS.—If a request for

2 benefit payments, or a request for advance de3 termination of coverage is submitted to a group

4 health plan or a health insurance issuer offering

5 health insurance coverage in such form as may

6 be required under the plan or coverage, the

7 plan or issuer shall issue in writing an initial

8 coverage decision on the request not later than

9 7 days (or such longer period as may be pre10 scribed in regulations of the Secretary) after

11 the date as of which the plan or issuer is in re12 ceipt of all information required (in writing or

13 in such other form as may be specified under

14 the plan or coverage) to make an initial cov15 erage decision. Failure to issue a coverage deci16 sion on such a request by such deadline shall be

17 treated as an adverse coverage decision for pur18 poses of internal review under subparagraph

19 (B).

20 (B) INTERNAL REVIEWS OF INITIAL DENI21 ALS.—Upon the written request of a partici22 pant, beneficiary, or enrollee for review of an

23 initial adverse coverage decision under subpara24 graph (A), a review by an internal appeals en25 tity of the initial coverage decision shall be com-
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1 pleted, including issuance by the plan or issuer

2 of a written decision affirming, reversing, or

3 modifying the initial coverage decision, setting

4 forth the grounds for such decision, not later

5 than 14 days (or such longer period as may be

6 prescribed in regulations of the Secretary) after

7 the date as of which the entity is in receipt of

8 all information required (in writing or in such

9 other form as may be specified under the plan

10 or coverage) to make a decision to affirm, mod11 ify, or reverse the coverage decision. Such deci12 sion shall be treated as the final decision of the

13 plan, subject to any applicable reconsideration.

14 Failure to issue by such deadline such a written

15 decision requested under this subparagraph

16 shall be treated as a final decision affirming the

17 initial coverage decision, subject to any applica18 ble reconsideration.

19 (2) TIME LIMITS FOR MAKING COVERAGE DECI20 SIONS RELATING TO URGENT HEALTH CARE AND

21 FOR COMPLETING INTERNAL APPEALS.—

22 (A) INITIAL DECISIONS.—A group health

23 plan and a health insurance issuer offering

24 health insurance coverage shall issue in writing

25 an initial coverage decision on any request for
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1 expedited advance determination of coverage, in

2 such form as may be required under the plan

3 or coverage, not later than 2 days (or such

4 longer period as may be prescribed in regula5 tions of the Secretary) after the date as of

6 which the plan or issuer is in receipt of all in7 formation required (in writing or in such other

8 form as may be specified under the plan or cov9 erage) to make an initial coverage decision.

10 Such decision shall be treated as the final deci11 sion of the plan or issuer, subject to any appli12 cable reconsideration. Failure to issue before

13 the end of the applicable decision period such a

14 written decision requested under this subpara15 graph shall be treated as a final decision af16 firming the initial coverage decision, subject to

17 any applicable reconsideration.

18 (B) INTERNAL REVIEWS OF INITIAL DENI19 ALS.—Upon the written request of a partici20 pant, beneficiary, or enrollee for review of an

21 initial adverse coverage decision under subpara22 graph (A), if the case involves urgent health

23 care, a review by an internal review entity of

24 the initial coverage decision shall be completed,

25 including issuance by the plan or issuer of a
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1 written decision affirming, reversing, or modify2 ing the initial coverage decision, setting forth

3 the grounds for the decision, not later than 2

4 days (or such longer period as may be pre5 scribed in regulations of the Secretary) after

6 the date as of which the entity is in receipt of

7 all information required (in writing or in such

8 other form as may be specified under the plan

9 or coverage) to make a decision to affirm, mod10 ify, or reverse the coverage decision. Such deci11 sion shall be treated as the final decision of the

12 plan or issuer, subject to any applicable recon13 sideration. Failure to issue before such deadline

14 such a written decision requested under this

15 subparagraph shall be treated as a final deci16 sion affirming the initial coverage decision, sub17 ject to any applicable reconsideration.

18 (c) REQUIREMENT FOR REVIEW OF INITIAL COV19 ERAGE DECISIONS BY A PHYSICIAN.—If an initial cov20 erage decision is based on a determination other than that

21 provision of a particular item or service is excluded from

22 coverage under the terms of the plan or coverage, the re23 view shall be conducted by a physician who is selected to

24 serve as an internal appeals entity under the plan or cov25 erage and who did not make the initial denial.
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1 (d) EXTERNAL REVIEW BY INDEPENDENT MEDICAL

2 EXPERTS AND RECONSIDERATION OF INITIAL REVIEW

3 DECISION.—

4 (1) IN GENERAL.—The requirements of para5 graphs (2), (3), and (4) shall apply—

6 (A) in the case of any failure to timely

7 issue a coverage decision upon internal review

8 which is deemed to be an adverse coverage deci9 sion (thereby failing to constitute a coverage de10 cision for which specific reasons have been set

11 forth as required), and

12 (B) in the case of any adverse coverage de13 cision not based on a determination that provi14 sion of a particular item or service is excluded

15 from coverage under the terms of the plan or

16 coverage because the provision of such item or

17 service is specifically excluded as a benefit of

18 the plan or coverage.

19 (2) RECONSIDERATION OF INITIAL REVIEW DE20 CISION.—In any case in which a participant, bene21 ficiary, or enrollee who has received an adverse deci22 sion of the plan or issuer upon review of the initial

23 coverage decision and who has not commenced re24 view of the initial coverage decision makes a request

25 in writing, within 30 days after the date of such re-
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1 view decision, for reconsideration of such review de2 cision, the terms of the plan or coverage shall pro3 vide for a procedure for such reconsideration paid

4 for by the plan or issuer under which—

5 (A) one or more independent medical ex6 perts will be selected to review the coverage de7 cision described;

8 (B) the record for review (including a spec9 ification of the terms of the plan or coverage

10 and other criteria serving as the basis for the

11 initial review decision) shall be presented to

12 such expert or experts and maintained in a

13 manner which shall ensure confidentiality of

14 such record;

15 (C) such expert or experts will make and

16 report in writing to the plan or issuer a deter17 mination as to whether such coverage decision

18 should be affirmed, modified, or reversed, set19 ting forth the grounds (including the clinical

20 basis) for the determination; and

21 (D) the determination of such expert or ex22 perts pursuant to subparagraph (C) shall be

23 considered binding on the plan or issuer.

24 (3) TIME LIMITS FOR RECONSIDERATION.—Any

25 review under this subsection shall be completed not
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1 later than 14 days (or, in the case of a decision in2 volving urgent health care, 2 days, or such longer

3 period as may be prescribed in regulations of the

4 Secretary) after the date as of which the independ5 ent medical expert or experts involved is in receipt

6 of all information required (in writing or in such

7 other form as may be specified under the plan or

8 coverage) to make a decision to affirm, modify, or

9 reverse the coverage decision. Failure to issue a

10 written decision before such deadline in any recon11 sideration requested under this subsection shall be

12 treated as a final decision affirming the initial re13 view decision of the plan or issuer.

14 (4) INDEPENDENT MEDICAL EXPERTS.—

15 (A) IN GENERAL.—For purposes of this

16 section, the term ‘‘independent medical expert’’

17 means, in connection with any coverage decision

18 by a group health plan or health insurance

19 issuer, a health care professional who—

20 (i) is a physician or, if appropriate,

21 another health care professional;

22 (ii) has appropriate credentials and

23 has attained recognized expertise in the

24 applicable health care field;
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1 (iii) was not involved in the initial de2 cision or any earlier review thereof; and

3 (iv) is selected in accordance with sub4 paragraph (B).

5 (B) SELECTION OF MEDICAL EXPERTS.—

6 An independent medical expert is selected in ac7 cordance with this subparagraph if—

8 (i) the expert is selected by an inter9 mediary which itself meets the require10 ments of subparagraph (C), by means of a

11 method which ensures that the identity of

12 the expert is not disclosed to the plan or

13 issuer, any health insurance issuer offering

14 health insurance coverage to the aggrieved

15 participant, beneficiary, or enrollee in con16 nection with the plan, and the aggrieved

17 participant, beneficiary, or enrollee under

18 the plan, and the identities of the plan, the

19 issuer, and the aggrieved participant, bene20 ficiary, or enrollee are not disclosed to the

21 expert;

22 (ii) the expert is selected, by an ap23 propriately credentialed panel of health

24 care professionals meeting the require25 ments of subparagraph (C) established by
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1 a fully accredited teaching hospital meeting

2 such requirements;

3 (iii) the expert is selected by an orga4 nization described in section 1152(1)(A) of

5 the Social Security Act which meets the re6 quirements of subparagraph (C);

7 (iv) the expert is selected by an exter8 nal review organization which meets the re9 quirements of subparagraph (C) and is ac10 credited by a private standard-setting or11 ganization meeting such requirements and

12 recognized as such by the Secretary; or

13 (v) the expert is selected under regu14 lations issued pursuant to negotiated rule15 making, sufficient to ensure the expert’s

16 independence, and the method of selection

17 is devised to reasonably ensure that the ex18 pert selected meets the independence re19 quirements of subparagraph (C).

20 (C) INDEPENDENCE REQUIREMENTS.—An

21 independent medical expert or another entity

22 described in subparagraph (B) meets the inde23 pendence requirements of this subparagraph

24 if—
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1 (i) the expert or entity is not affiliated

2 with any related party;

3 (ii) any compensation received by such

4 expert or entity in connection with the ex5 ternal review is reasonable and not contin6 gent on any decision rendered by the ex7 pert or entity;

8 (iii) under the terms of the plan and

9 any health insurance coverage involved, the

10 plan and the issuer (if any) have no re11 course against the expert or entity in con12 nection with the external review; and

13 (iv) the expert or entity does not oth14 erwise have a conflict of interest with a re15 lated party as determined under any regu16 lations which the Secretary may prescribe.

17 (D) RELATED PARTY.—For purposes of

18 this paragraph, the term ‘‘related party’’

19 means—

20 (i) with respect to—

21 (I) a group health plan or health

22 insurance coverage offered in connec23 tion with such a plan, the plan or the

24 health insurance issuer offering such

25 coverage, or
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1 (II) individual health insurance

2 coverage, the health insurance issuer

3 offering such coverage,

4 or any officer, director, or management

5 employee of such plan or issuer;

6 (ii) the health care professional that

7 provided the health care involved in the

8 coverage decision;

9 (iii) the institution at which the health

10 care involved in the coverage decision is

11 provided;

12 (iv) the manufacturer of any drug or

13 other item that was included in the health

14 care involved in the coverage decision; or

15 (v) any other party determined under

16 any regulations which the Secretary may

17 prescribe to have a substantial interest in

18 the coverage decision.

19 (E) AFFILIATED.—For purposes of this

20 paragraph, the term ‘‘affiliated’’ means, in con21 nection with any entity, having a familial, fi22 nancial, or professional relationship with, or in23 terest in, such entity.

24 (F) LIMITATION ON LIABILITY.—An indi25 vidual serving on as an independent medical ex-
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1 pert or an entity acting as such under this

2 paragraph shall not be held liable for any deci3 sion made except in cases of gross negligence,

4 recklessness, or intentional misconduct by such

5 individual or entity.

6 (5) INAPPLICABILITY WITH RESPECT TO ITEMS

7 AND SERVICES SPECIFICALLY EXCLUDED FROM COV8 ERAGE.—An adverse coverage decision based on a

9 determination that an item or service is excluded

10 from coverage under the terms of a plan or health

11 insurance coverage shall not be subject to review

12 under this section.

13 (e) PENALTIES AGAINST AUTHORIZED OFFICIALS

14 FOR DENIAL OF EXTERNAL REVIEW.—

15 (1) MONETARY PENALTIES.—In any case in

16 which review by an independent medical expert or

17 experts of a benefit is denied by a group health plan,

18 or by a health insurance issuer offering health insur19 ance coverage, any person who, acting in the capac20 ity of determining the necessity of such a review,

21 causes such denial may, in the court’s discretion, be

22 liable to the aggrieved participant, beneficiary, or

23 enrollee for a civil penalty in an amount of up to

24 $750 a day from the date on which the rec25 ommendation was made to the plan or issuer until
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1 the date the failure to provide review is corrected, up

2 to a total amount not to exceed $250,000.

3 (2) CEASE AND DESIST ORDER AND ORDER OF

4 ATTORNEY’S FEES.—In any action described in

5 paragraph (1) brought by a participant, beneficiary,

6 or enrollee with respect to a group health plan, or

7 a health insurance issuer offering health insurance

8 coverage, in which the plaintiff alleges that a person

9 referred to in such paragraph has taken an action

10 resulting in a denial of review by independent medi11 cal expert or experts in violation of such terms of

12 the plan, coverage, or this title, or has failed to take

13 an action for which such person is responsible under

14 the plan, coverage, or this title and which is nec15 essary under the plan or coverage for allowing such

16 review, the court shall cause to be served on the de17 fendant an order requiring the defendant—

18 (i) to cease and desist from the alleged ac19 tion or failure to act; and

20 (ii) to pay to the plaintiff a reasonable at21 torney’s fee and other reasonable costs relating

22 to the prosecution of the action on the charges

23 on which the plaintiff prevails.

24 (3) ADDITIONAL CIVIL PENALTIES.—
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1 (A) IN GENERAL.—In addition to any pen2 alty imposed under paragraph (1) or (2), the

3 appropriate Secretary may assess a civil penalty

4 against a person acting in the capacity of deter5 mining the necessity of external review for one

6 or more group health plans, or health insurance

7 issuers offering health insurance coverage,

8 for—

9 (i) any pattern or practice of repeated

10 denial of review by independent medical ex11 pert or experts in violation of the terms of

12 such a plan, coverage, or this title; or

13 (ii) any pattern or practice of re14 peated violations of the requirements of

15 this section with respect to such plan or

16 plans or coverage.

17 (B) STANDARD OF PROOF AND AMOUNT OF

18 PENALTY.—Such penalty shall be payable only

19 upon proof by clear and convincing evidence of

20 such pattern or practice and shall be in an

21 amount not to exceed the lesser of—

22 (i) 25 percent of the aggregate value

23 of benefits shown by the appropriate Sec24 retary to have not been provided, or unlaw-
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1 fully delayed, in violation of this section

2 under such pattern or practice, or

3 (ii) $500,000.

4 (4) REMOVAL AND DISQUALIFICATION.—Any

5 person acting in the capacity of determining the ne6 cessity of external review who has engaged in any

7 such pattern or practice described in paragraph

8 (3)(A) with respect to a plan or coverage, upon the

9 petition of the appropriate Secretary, may be re10 moved by the court from that position, and from any

11 other involvement, with respect to such a plan or

12 coverage, and may be precluded from returning to

13 any such position or involvement for a period deter14 mined by the court.

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

16 (1) ADVANCE DETERMINATION OF COV17 ERAGE.—The term ‘‘advance determination of cov18 erage’’ means a determination under a group health

19 plan, and a health insurance issuer offering health

20 insurance coverage that proposed health care meets,

21 under the facts and circumstances at the time of the

22 determination, the plan or issuer’s terms and condi23 tions of coverage (which may be subject to excep24 tions under the plan for fraud or misrepresentation).
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1 (2) ADVERSE COVERAGE DECISION.—The term

2 ‘‘adverse coverage decision’’ means any request for

3 payment of benefits, determination of coverage, ad4 vance determination of coverage, or expedited ad5 vance determination of coverage made by a group

6 health plan, or a health insurance issuer offering

7 health insurance coverage, that does not affirm the

8 treatment decision of the treating health care profes9 sional.

10 (3) REQUEST FOR ADVANCE DETERMINATION

11 OF COVERAGE.—The term ‘‘request for advance de12 termination of coverage’’ means a request for an ad13 vance determination of coverage of health care which

14 is made by or on behalf of a participant, beneficiary,

15 or enrollee before such health care is provided.

16 (4) REQUEST FOR BENEFIT PAYMENTS.—The

17 term ‘‘request for benefit payments’’ means a re18 quest, for payment of benefits by a group health

19 plan, or health insurance issuer offering health in20 surance coverage for health care, which is made by

21 or on behalf of a participant, beneficiary, or enrollee

22 after such health care has been provided.

23 (5) REQUEST FOR EXPEDITED ADVANCE DE24 TERMINATION OF COVERAGE.—The term ‘‘request

25 for expedited advance determination of coverage’’
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1 means a request for advance determination of cov2 erage, in any case in which the proposed health care

3 constitutes urgent health care.

4 (6) URGENT HEALTH CARE.—The term ‘‘urgent

5 health care’’ means health care in any case in which

6 a physician has certified in writing (or as otherwise

7 provided in regulations of the Secretary) that failure

8 to provide the participant, beneficiary, or enrollee

9 with such health care within 7 days can reasonably

10 be expected to result in either—

11 (A) the imminent death of the participant,

12 beneficiary, or enrollee; or

13 (B) the immediate, serious, and irrevers14 ible deterioration of the health of the partici15 pant or beneficiary which will significantly in16 crease the likelihood of death of, or irreparable

17 harm to, the participant, beneficiary, or en18 rollee.

19 (7) WRITTEN OR IN WRITING.—A request or

20 decision shall be deemed to be ‘‘written’’ or ‘‘in writ21 ing’’ if such request or decision is presented in a

22 generally recognized printable or electronic format.

23 The appropriate Secretary may by regulation provide

24 for presentation of information otherwise required to
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1 be in written form in such other forms as may be

2 appropriate under the circumstances.

3 Subtitle D—Promoting Quality

4 Care by Ensuring Fair Plan Ad5 ministration

6 SEC. 131. RESTRICTIONS ON INCENTIVE PLANS.

7 (a) INCENTIVE PLANS.—

8 (1) IN GENERAL.—In the case of a group

9 health plan, and a health insurance issuer that of10 fers network coverage, any health professional or

11 provider incentive plan operated by the plan or

12 issuer with respect to such coverage shall meet the

13 following requirements:

14 (A) No specific payment shall be made di15 rectly or indirectly under the plan to a profes16 sional or provider or group of professionals or

17 providers as an inducement to reduce or limit

18 medically necessary services provided with re19 spect to a specific participant, beneficiary, or

20 enrollee.

21 (B) If a plan or issuer places such a pro22 fessional, provider, or group at substantial fi23 nancial risk (as determined by the Secretary)

24 for services not provided by the professional,

25 provider, or group, the plan issuer shall provide
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1 stop-loss protection for the professional, pro2 vider, or group that is adequate and appro3 priate, based on standards developed by the

4 Secretary that take into account the number of

5 professionals or providers placed at such sub6 stantial financial risk in the group or under the

7 coverage and the number of individuals enrolled

8 with the plan or issuer who receive services

9 from the professional, provider, or group.

10 (2) NOTIFICATION.—The plan or issuer shall

11 provide the Secretary with descriptive information

12 regarding the plan, sufficient to permit the Sec13 retary to determine whether the plan is in compli14 ance with the requirements of this section.

15 (b) HEALTH PROFESSIONAL OR PROVIDER INCEN16 TIVE PLAN DEFINED.—In this subsection, the term health

17 professional or provider incentive plan means any com18 pensation arrangement between a health insurance issuer

19 and a health professional or provider or professional or

20 provider group that has the effect of reducing or limiting

21 services provided with respect to individuals enrolled with

22 the plan or issuer.

23 (c) CONSTRUCTION.—Nothing in this section shall be

24 construed as prohibiting all capitation and similar ar25 rangements or all provider discount arrangements.
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1 (d) IMPLEMENTATION.—The Secretary shall submit

2 to Congress not later than January 1, 2000 a report de3 tailing regulations and a plan for implementation of the

4 details of this section. Such regulations and plan for im5 plementation shall not proceed without the concurrence by

6 joint resolution or Act of the Congress.

7 SEC. 132. DEVELOPMENT OF PLAN AND ISSUER POLICIES.

8 A group health plan, and a health insurance issuer

9 that offers network coverage shall establish mechanisms

10 to consider the recommendations, suggestions, and views

11 of participants, beneficiaries, enrollees and participating

12 health professionals and providers regarding—

13 (1) the medical policies of the plan or issuer

14 (including policies relating to coverage of new tech15 nologies, treatments, and procedures);

16 (2) the utilization review criteria and proce17 dures of the plan or issuer;

18 (3) the quality and credentialing criteria of the

19 plan or issuer; and

20 (4) the medical management procedures of the

21 plan or issuer.

22 SEC. 133. PATIENT ACCESS TO INFORMATION.

23 (a) DISCLOSURE REQUIREMENTS.—

24 (1) IN GENERAL.—A group health plan or

25 health insurance issuer providing health insurance
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1 coverage shall take such actions as necessary to en2 sure that—

3 (A) information required under subsections

4 (b) through (k) is provided at the time of en5 rollment, at least annually thereafter, and upon

6 written request; and

7 (B) the information described in subsection

8 (l) is provided upon written request,

9 to plan participants and beneficiaries and to enroll10 ees, respectively.

11 (2) INCLUSION IN SUMMARY PLAN DESCRIP12 TION.—In the case of a group health plan, the infor13 mation described in paragraph (1)(A) shall be made

14 available as part of the summary plan description of

15 the plan.

16 (3) CHARGING FOR INFORMATION MADE AVAIL17 ABLE UPON REQUEST.—In cases in which the infor18 mation is made available upon written request under

19 paragraph (1), the plan or issuer may impose a rea20 sonable charge to cover the cost of making the infor21 mation so available. The Secretary may by regula22 tion prescribe a maximum amount which will con23 stitute a reasonable charge under this paragraph.

24 (b) PLAN BENEFITS.—The information required

25 under subsection (a) includes the following:
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1 (1) COVERED ITEMS AND SERVICES.—

2 (A) CATEGORIZATION OF INCLUDED BENE3 FITS.—A description of covered benefits, cat4 egorized by—

5 (i) types of items and services (includ6 ing any special disease management pro7 gram); and

8 (ii) types of health care professionals

9 providing such items and services.

10 (B) EMERGENCY MEDICAL CARE.—A de11 scription of—

12 (i) the extent to which the plan or

13 health insurance coverage covers emer14 gency medical care;

15 (ii) the locations of hospital emer16 gency departments, urgent care centers,

17 and other sites or settings in which the

18 plan or health insurance coverage makes

19 available emergency medical care or post20 stabilization care; and

21 (iii) the appropriate use of emergency

22 services, including use of the 911 telephone

23 system or its local equivalent in emergency

24 situations, and an explanation of what con25 stitutes an emergency situation.
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1 (C) PREVENTATIVE SERVICES.—A descrip2 tion of the extent to which the plan or health

3 insurance coverage provides benefits for pre4 ventative services.

5 (D) DRUG FORMULARIES.—A description

6 of the extent to which covered benefits are de7 termined by the use or application of a drug

8 formulary and a summary of the process for de9 termining what is included in such formulary.

10 (E) COBRA CONTINUATION COVERAGE.—

11 In the case of a group health plan, a descrip12 tion of the benefits available under the plan

13 pursuant to part 6 of the Employee Retirement

14 Income Security Act.

15 (2) LIMITATIONS, EXCLUSIONS, AND RESTRIC16 TIONS ON COVERED BENEFITS.—

17 (A) CATEGORIZATION OF EXCLUDED BEN18 EFITS.—A description of benefits specifically

19 excluded from coverage, categorized by types of

20 items and services.

21 (B) UTILIZATION REVIEW AND

22 PREAUTHORIZATION REQUIREMENTS.—Whether

23 coverage for health care is limited or excluded

24 on the basis of utilization review or

25 preauthorization requirements.
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1 (C) LIFETIME, ANNUAL, OR OTHER PE2 RIOD LIMITATIONS.—A description of the cir3 cumstances under which, and the extent to

4 which, coverage is subject to lifetime, annual, or

5 other period limitations, categorized by types of

6 benefits.

7 (D) CUSTODIAL CARE.—A description of

8 the circumstances under which, and the extent

9 to which, the coverage of benefits for custodial

10 care is limited or excluded, and a statement of

11 the definition used by the plan for custodial

12 care.

13 (E) EXPERIMENTAL TREATMENTS.—

14 Whether coverage for any health care is limited

15 or excluded because it constitutes experimental

16 treatment or technology, and any definitions

17 provided under the plan or coverage for the rel18 evant terminology referring to such limited or

19 excluded care.

20 (F) SECOND OR SUBSEQUENT OPINIONS.—

21 A description of the circumstances under which,

22 and the extent to which, coverage for second or

23 subsequent opinions is limited or excluded.

24 (G) SPECIALTY CARE.—A description of

25 the circumstances under which, and the extent
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1 to which, coverage of benefits for specialty care

2 is conditioned on referral from a primary care

3 provider.

4 (H) CONTINUITY OF CARE.—A description

5 of the circumstances under which, and the ex6 tent to which, coverage of items and services

7 provided by any health care professional is lim8 ited or excluded by reason of the departure by

9 the professional from any defined set of provid10 ers.

11 (I) RESTRICTIONS ON COVERAGE OF

12 EMERGENCY SERVICES.—A description of the

13 circumstances under which, and the extent to

14 which, the plan or health insurance coverage, in

15 covering emergency medical care furnished to a

16 participant or beneficiary of the plan or enrollee

17 imposes any financial responsibility described in

18 subsection (c) on participants or beneficiaries or

19 enrollees or limits or conditions benefits for

20 such care subject to any other term or condition

21 of such plan or coverage.

22 (c) PARTICIPANT’S FINANCIAL RESPONSIBILITIES.—

23 The information required under subsection (a) includes an

24 explanation of—
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1 (1) a participant’s or enrollee’s financial re2 sponsibility for payment of premiums, coinsurance,

3 copayments, deductibles, and any other charges; and

4 (2) the circumstances under which, and the ex5 tent to which, the participant’s or enrollee’s financial

6 responsibility described in paragraph (1) may vary,

7 including any distinctions based on whether a health

8 care provider from whom covered benefits are ob9 tained is included in a defined set of providers.

10 (d) DISPUTE RESOLUTION PROCEDURES.—The in11 formation required under subsection (a) includes a de12 scription of the processes adopted by the plan pursuant

13 to section 122, including—

14 (1) descriptions relating specifically to—

15 (A) coverage decisions;

16 (B) internal review of coverage decisions;

17 and

18 (C) any external review of coverage deci19 sions;

20 (2) the procedures and time frames applicable

21 to each step of the processes referred to in subpara22 graphs (A), (B), and (C) of paragraph (1); and

23 (3) the number of external review cases con24 ducted annually and, of such number, the number of

25 such cases where the decision of the plan or issuer
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1 is upheld and the number of such cases where the

2 decision of the plan or issuer is modified or over3 turned.

4 (e) NETWORK CHARACTERISTICS.—If the plan or

5 health insurance issuer utilizes a defined set of providers

6 under contract with the plan or issuer, the information

7 required under subsection (a) includes a detailed list of

8 the names of such providers and their geographic location,

9 set forth separately with respect to primary care providers

10 and with respect to specialists.

11 (f) CARE MANAGEMENT INFORMATION.—The infor12 mation required under subsection (a) includes a descrip13 tion of the circumstances under which, and the extent to

14 which, the plan or health insurance issuer has special dis15 ease management programs or programs for persons with

16 disabilities, indicating whether these programs are vol17 untary or mandatory and whether a significant benefit dif18 ferential results from participation in such programs.

19 (g) INCLUSION OF DRUGS AND BIOLOGICALS IN

20 FORMULARIES.—The information required under sub21 section (a) includes a statement of whether a specific drug

22 or biological is included in a formulary used to determine

23 benefits under the plan or health insurance coverage and

24 a description of the procedures for considering requests

25 for any patient-specific waivers.
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1 (h) PREAUTHORIZATION AND UTILIZATION REVIEW

2 PROCEDURES.—The information required under sub3 section (a) includes, upon receipt by the participant or

4 beneficiary or enrollee of any notification of an adverse

5 coverage decision, a description of the basis on which any

6 preauthorization requirement or any utilization review re7 quirement has resulted in such decision.

8 (i) ACCREDITATION STATUS OF HEALTH INSURANCE

9 ISSUERS AND SERVICE PROVIDERS.—The information re10 quired under subsection (a) includes a description of the

11 accreditation and licensing status (if any) of each health

12 insurance issuer (or each such issuer offering health insur13 ance coverage in connection with the plan) and of any uti14 lization review organization utilized by the issuer or the

15 plan, together with the name and address of the accredit16 ing or licensing authority.

17 (j) MEASURES OF ENROLLEE SATISFACTION.—The

18 information required under subsection (a) includes the lat19 est information (if any) maintained by the plan (or by any

20 health insurance issuer offering health insurance coverage

21 in connection with the plan) or by the health insurance

22 issuer relating to enrollee satisfaction.

23 (k) QUALITY PERFORMANCE MEASURES.—The infor24 mation required under subsection (a) includes the latest

25 information (if any) maintained by the plan (or by any
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1 health insurance issuer offering health insurance coverage

2 in connection with the plan) or by the health insurance

3 issuer, relating to quality of performance of the delivery

4 of health care with respect to coverage options offered

5 under the plan or health insurance coverage and of health

6 care professionals and facilities providing health care

7 under the plan or coverage.

8 (l) INFORMATION AVAILABLE ON REQUEST.—Pursu9 ant to written request under subsection (a)(1)(B)—

10 (1) INFORMATION REQUIRED FROM INDIVIDUAL

11 HEALTH CARE PROFESSIONALS ON REQUEST.— Any

12 health care professional treating a participant or

13 beneficiary under a group health plan or an enrollee

14 under health insurance coverage shall provide to the

15 participant or beneficiary or enrollee, on request, a

16 description of his or her professional qualifications

17 (including board certification status, licensing sta18 tus, and accreditation status, if any), privileges, and

19 experience and a general description by category (in20 cluding salary, fee-for-service, capitation, and such

21 other categories as may be specified in regulations of

22 the Secretary) of the applicable method by which

23 such professional is compensated in connection with

24 the provision of such health care under the plan or

25 coverage.
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1 (2) INFORMATION REQUIRED FROM INDIVIDUAL

2 HEALTH CARE FACILITIES ON REQUEST.—Any

3 health care facility from which a participant, bene4 ficiary, or enrollee has sought treatment under a

5 group health plan or health insurance coverage shall

6 provide to the participant, beneficiary, or enrollee,

7 on request, a description of the facility’s corporate

8 form or other organizational form and all forms of

9 licensing and accreditation status (if any) assigned

10 to the facility by standard-setting organizations.

11 (m) ADVANCE NOTICE OF CHANGES IN DRUG

12 FORMULARIES.—Not later than 30 days before the effec13 tive date of any exclusion of a specific drug or biological

14 from any drug formulary under the group health plan or

15 health insurance coverage that is used in the treatment

16 of a chronic illness or disease, the plan or issuer shall take

17 such actions as are necessary to reasonably ensure that

18 plan participants or enrollees are informed of such exclu19 sion. The requirements of this subsection may be

20 satisfied—

21 (1) in the case of a group health plan, by inclu22 sion of information in publications broadly distrib23 uted by plan sponsors, employers, or employee orga24 nizations;
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1 (2) by timely informing participants or enrollees

2 who, under an ongoing program maintained under

3 the plan or health insurance issuer, have submitted

4 their names for such notification; or

5 (3) by any other reasonable means of timely in6 forming participants or enrollees.

7 SEC. 134. PROTECTION OF CONFIDENTIALITY.

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

9 insurance issuer offering health insurance coverage, shall

10 establish mechanisms and procedures to ensure compli11 ance with applicable Federal and State laws to protect the

12 confidentiality of individually identifiable information held

13 by the plan issuer with respect to a participant, bene14 ficiary, enrollee, health professional, or provider.

15 (b) INDIVIDUALLY IDENTIFIABLE INFORMATION DE16 FINED.—For purposes of subsection (a), the term ‘‘indi17 vidually identifiable information’’ means, with respect to

18 a participant, beneficiary, enrollee, a health professional,

19 or a provider, any information, whether oral or recorded

20 in any medium or form, that identifies or can readily be

21 associated with the identity of the participant, beneficiary,

22 enrollee, the health professional, or the provider.
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1 SEC. 135. DUE PROCESS FOR HEALTH PROFESSIONALS AND

2 PROVIDERS.

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

4 insurance issuer, with respect to its offering of network

5 coverage shall—

6 (1) allow all health professionals and providers

7 in its service area who are licensed, accredited, or

8 certified to perform specific health services consist9 ent with State law and those services covered under

10 the network coverage to apply to become a partici11 pating health professional or provider as openings in

12 a network become available during at least one pe13 riod in each calendar year;

14 (2) provide reasonable notice to such health

15 professionals and providers of the opportunity to

16 apply and of the period during which applications

17 are accepted;

18 (3) provide for review of each application by a

19 credentialing committee with representation of the

20 category or type of health professional or provider

21 being credentialed;

22 (4) select participating health professionals and

23 providers using objective standards of quality devel24 oped with the suggestions and advice of professional

25 associations, health professionals, and providers;
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1 (5) make such selection standards available

2 to—

3 (A) those applying to become a participat4 ing provider or health professional;

5 (B) purchasers of health insurance cov6 erage; and

7 (C) participants, beneficiaries, or enrollees;

8 (6) when economic considerations are taken

9 into account in selecting participating health profes10 sionals and providers, use objective criteria that are

11 available to those applying to become a participating

12 provider or health professional and participants,

13 beneficiaries, or enrollees;

14 (7) adjust any economic profiling to take into

15 account patient characteristics (such as severity of

16 illness) that may result in atypical utilization of

17 services;

18 (8) make the results of such profiling available

19 to insurance purchasers, enrollees, and the health

20 professional or provider involved;

21 (9) notify any health professional or provider

22 being reviewed under the process referred to in para23 graph (3) of any information indicating that the

24 health professional or provider fails to meet the

25 standards of the issuer;
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1 (10) offer a health professional or provider re2 ceiving notice pursuant to the requirement of para3 graph (9) with an opportunity to—

4 (A) review the information referred to in

5 such paragraph; and

6 (B) submit supplemental or corrected in

7 formation;

8 (11) not include in its contracts with participat9 ing health professionals and providers a provision

10 permitting the issuer to terminate the contract with11 out cause;

12 (12) provide a due process appeal that con13 forms to the process specified in section 412 of the

14 Health Care Quality Improvement Act of 1986 (42

15 U.S.C. 11112) for all determinations that are ad16 verse to a health professional or provider; and

17 (13) unless a health professional or provider

18 poses an imminent harm to enrollees or an adverse

19 action by a governmental agency effectively impairs

20 the ability to provide health care items and services,

21 provide—

22 (A) reasonable notice of any decision to

23 terminate a health professional or provider for

24 cause (including an explanation of the reasons

25 for the determination);
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1 (B) an opportunity to review and discuss

2 all of the information on which the determina3 tion is based; and

4 (C) an opportunity to enter into a correc5 tive action plan, before the determination be

6 comes subject to appeal under the process re7 ferred to in paragraph (12).

8 (b) RULES OF CONSTRUCTION.—The requirements of

9 subsection (a) shall not be construed as preempting or su10 perseding any other reviews and appeals a group health

11 plan, or a health insurance issuer are required by law to

12 make available. Nothing in subsection (a) shall be con13 strued to require a group health plan or a health insurance

14 issuer to renew a contract with a participating provider.

15 SEC. 136. PROHIBITION OF INTERFERENCE WITH CERTAIN

16 MEDICAL COMMUNICATIONS.

17 (a) IN GENERAL.—Subject to subsections (b) and (c),

18 a group health plan, and a health insurance issuer (in rela19 tion to an individual enrolled under health insurance cov20 erage offered by the issuer) shall not prohibit or otherwise

21 restrict a covered health care professional (as defined in

22 subsection (d)) from advising such an individual who is

23 a patient of the professional about the health status of

24 the individual or health care or treatment for the individ25 uals condition or disease, regardless of whether benefits
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1 for such care or treatment are provided under the cov2 erage, if the professional is acting within the lawful scope

3 of practice.

4 (b) CONSCIENCE PROTECTION.—Subsection (a) shall

5 not be construed as requiring a group health plan or a

6 health insurance issuer to provide, reimburse for, or pro7 vide coverage of a counseling or referral service if the

8 issuer—

9 (1) objects to the provision of such service on

10 moral or religious grounds; and

11 (2) in the manner and through the written in12 strumentalities such issuer deems appropriate,

13 makes available information on its policies regarding

14 such service to prospective enrollees before or during

15 enrollment and to enrollees within 90 days after the

16 date that the issuer adopts a change in policy re17 garding such a counseling or referral service.

18 (c) CONSTRUCTION.—Nothing in subsection (b) shall

19 be construed to affect disclosure requirements under State

20 law or under the Employee Retirement Income Security

21 Act of 1974.

22 SEC. 137. PLAN SOLVENCY.

23 A group health plan and a health insurance issuer

24 offering health insurance coverage shall—
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1 (1) meet such financial reserve or other sol2 vency-related requirements as the applicable State

3 authority may establish to assure the continued

4 availability of (and appropriate payment for) covered

5 items and services for enrollees; and

6 (2) establish mechanisms specified by the appli7 cable State authority to protect enrollees, health pro8 fessionals, and providers in the event of failure of

9 the issuer.

10 Such requirements shall not unduly impede the establish11 ment of health insurance issuers owned and operated by

12 health care professionals or providers or by nonprofit com13 munity-based organizations.

14 SEC. 138. QUALITY ASSESSMENT PROGRAM.

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

16 insurance issuer offering health insurance coverage shall

17 establish a quality assessment program (consistent with

18 subsection (b)) that systematically and continuously

19 assesses—

20 (1) participant, beneficiary, or enrollee health

21 status, patient outcomes, processes of care, and par22 ticipant, beneficiary, or enrollee satisfaction associ23 ated with health care provided by the plan or issuer;

24 and
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1 (2) the administrative and funding capacity of

2 the issuer to support and emphasize preventive care,

3 utilization, access and availability, cost effectiveness,

4 acceptable treatment modalities, specialists referrals,

5 the peer review process, and the efficiency of the ad6 ministrative process.

7 (b) FUNCTIONS.—A quality assessment program es8 tablished pursuant to subsection (a) shall—

9 (1) assess the performance of the plan or issuer

10 and its participating health professionals and provid11 ers and report the results of such assessment to pur12 chasers, participating health professionals and pro13 viders, and administrative personnel; and

14 (2) analyze quality assessment data to deter15 mine specific interactions in the delivery system

16 (both the design and funding of the health insurance

17 coverage and the clinical provision of care) that have

18 an adverse impact on the quality of care.

19 Subtitle E—Definitions

20 SEC. 151. DEFINITIONS.

21 (a) INCORPORATION OF GENERAL DEFINITIONS.—

22 Except as otherwise provided, the provisions of section

23 2971 of the Public Health Service Act shall apply for pur24 poses of this title in the same manner as they apply for

25 purposes of title XXVII of such Act.
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1 (b) SECRETARY.—Except as otherwise provided, the

2 term ‘‘Secretary’’ means the Secretary of Health and

3 Human Services, in consultation with the Secretary of

4 Labor and the Secretary of the Treasury and the term

5 ‘‘appropriate Secretary’’ means the Secretary of Health

6 and Human Services in relation to carrying out this title

7 under sections 2706 and 2751 of the Public Health Serv8 ice Act and the Secretary of Labor in relation to carrying

9 out this title under section 713 of the Employee Retire10 ment Income Security Act of 1974.

11 (c) ADDITIONAL DEFINITIONS.—For purposes of this

12 title:

13 (1) APPLICABLE AUTHORITY.—The term ‘‘ap14 plicable authority’’ means—

15 (A) in the case of a group health plan, the

16 Secretary of Health and Human Services and

17 the Secretary of Labor; and

18 (B) in the case of a health insurance issuer

19 with respect to a specific provision of this title,

20 the applicable State authority (as defined in

21 section 2791(d) of the Public Health Service

22 Act), or the Secretary of Health and Human

23 Services, if such Secretary is enforcing such

24 provision under section 2722(a)(2) or

25 2761(a)(2) of the Public Health Service Act.
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1 (2) ENROLLEE.—The term ‘‘enrollee’’ means,

2 with respect to health insurance coverage offered by

3 a health insurance issuer, an individual enrolled with

4 the issuer to receive such coverage.

5 (3) FEE-FOR-SERVICE COVERAGE.—The term

6 ‘‘fee-for-service coverage’’ means coverage that—

7 (A) reimburses hospitals, health profes8 sionals, or other providers, directly or by pay9 ment to enrollees who are required to pay such

10 parties, on the basis of a rate determined by

11 the issuer on a fee-for-service basis without

12 placing the provider at financial risk;

13 (B) does not vary reimbursement for the

14 coverage period for such a provider based on an

15 agreement to contract terms and conditions or

16 the utilization of health care items or services

17 relating to such provider or enrollees; and

18 (C) does not restrict the selection of pro19 viders among those who are lawfully authorized

20 to provide the covered services and agree to ac21 cept the terms and conditions of payment estab22 lished by the issuer; and

23 (D) for which the issuer does not utilize

24 prospective or concurrent review.
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1 (4) GROUP HEALTH PLAN.—The term ‘‘group

2 health plan’’ has the meaning given such term in

3 section 733(a) of the Employee Retirement Income

4 Security Act of 1974.

5 (5) HEALTH PROFESSIONAL.—The term

6 ‘‘health professional’’ means an individual who is li7 censed, accredited, or certified under State law to

8 provide specified health care services and who is op9 erating within the scope of such licensure, accredita10 tion, or certification.

11 (6) NETWORK.—The term ‘‘network’’ means,

12 with respect to a group health plan or health insur13 ance issuer offering health insurance coverage, the

14 participating health professionals and providers

15 through whom the plan or issuer provides health

16 care items and services to participants, beneficiaries,

17 or enrollees.

18 (7) NETWORK COVERAGE.—The term ‘‘network

19 coverage’’ means, with respect to a group health

20 plan or health insurance coverage offered by a

21 health insurance issuer, health benefits coverage that

22 provides or arranges for the provision of health care

23 items and services to participants, beneficiaries, or

24 enrollees through participating health professionals

25 and providers.
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1 (8) NONPARTICIPATING.—The term ‘‘non2 participating’’ means, with respect to a health care

3 provider that provides health care items and services

4 to a participant, beneficiary, or enrollee under group

5 health plan or health insurance coverage, a health

6 care provider that is not a participating health care

7 provider with respect to such items and services.

8 (9) PARTICIPATING.—The term ‘‘participating’’

9 means, with respect to a health care provider that

10 provides health care items and services to a partici11 pant, beneficiary, or enrollee under group health

12 plan or health insurance coverage offered by a

13 health insurance issuer, a health care provider that

14 furnishes such items and services under a contract

15 or other arrangement with the plan or issuer.

16 (10) PRIOR AUTHORIZATION.—The term ‘‘prior

17 authorization’’ means the process of obtaining prior

18 approval from a health insurance issuer for the

19 treatment of a medical or clinical condition.

20 (11) PROVIDER.—The term ‘‘provider’’ means a

21 health organization, health facility, or health agency

22 that is licensed, accredited, or certified to provide

23 health care items and services under applicable State

24 law.
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1 (12) SERVICE AREA.—The term ‘‘service area’’

2 means, with respect to a health insurance issuer

3 with respect to health insurance coverage, the geo4 graphic area served by the issuer with respect to the

5 coverage.

6 (13) UTILIZATION REVIEW.—The term ‘‘utiliza7 tion review’’ means prospective, concurrent, or retro8 spective review of health care items and services,

9 and includes prior authorization requirements for

10 coverage of such items and services.

11 (d) ABORTION AND EUTHANASIA SERVICES DE12 FINED.—For purposes of this sections 104 and 116:

13 (1) ABORTION SERVICES.—The term ‘‘abortion

14 services’’ means the performance of an abortion, the

15 providing of drugs to induce an abortion, and serv16 ices related directly to the performance of an abor17 tion (such as the performance of ultrasound and

18 similar preparatory procedures and preparation of

19 post-abortion pathology reports), but does not in20 clude the treatment of injuries or illnesses caused by

21 an abortion.

22 (2) EUTHANASIA SERVICES.—The term ‘‘eutha23 nasia services’’ means anything for which the use of

24 funds appropriated by the Congress is prohibited

25 under the Assisted Suicide Funding Restriction Act
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1 of 1997 (Public Law 105–12; 42 U.S.C. 14401 et

2 seq.), subject to sections 3(b) of such Act (42 U.S.C.

3 14402(b)).

4 (e) APPLICATION TO PARTNERSHIPS.—The provi5 sions of paragraphs (1), (2), and (3) of section 732(d)

6 of the Employee Retirement Income Security Act of 1974

7 shall apply with respect to partnerships.

8 SEC. 152. PREEMPTION; STATE FLEXIBILITY; CONSTRUC9 TION.

10 (a) CONTINUED APPLICABILITY OF STATE LAW

11 WITH RESPECT TO HEALTH INSURANCE ISSUERS.—

12 (1) IN GENERAL.—Subject to paragraph (2),

13 this title shall not be construed to supersede any

14 provision of State law which establishes, implements,

15 or continues in effect any standard or requirement

16 solely relating to health insurance issuers (in connec17 tion with group health insurance coverage or other18 wise) except to the extent that such standard or re19 quirement prevents the application of a requirement

20 of this title.

21 (2) CONTINUED PREEMPTION WITH RESPECT

22 TO GROUP HEALTH PLANS.—Nothing in this title

23 shall be construed to affect or modify the provisions

24 of section 514 of the Employee Retirement Income
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1 Security Act of 1974 with respect to group health

2 plans.

3 (b) RULES OF CONSTRUCTION.—Nothing in this title

4 shall be construed as requiring a group health plan or

5 health insurance coverage to provide specific benefits

6 under the terms of such plan or coverage.

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

8 (1) STATE LAW.—The term ‘‘State law’’ in9 cludes all laws, decisions, rules, regulations, or other

10 State action having the effect of law, of any State.

11 A law of the United States applicable only to the

12 District of Columbia shall be treated as a State law

13 rather than a law of the United States.

14 (2) STATE.—The term ‘‘State’’ includes a

15 State, the Northern Mariana Islands, any political

16 subdivisions of a State or such Islands, or any agen17 cy or instrumentality of either.

18 SEC. 153. REGULATIONS.

19 The Secretaries of Health and Human Services,

20 Labor, and the Treasury shall issue such regulations as

21 may be necessary or appropriate to carry out this title.

22 Such regulations shall be issued consistent with section

23 104 of Health Insurance Portability and Accountability

24 Act of 1996. Such Secretaries may promulgate any in-
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1 terim final rules as the Secretaries determine are appro2 priate to carry out this title.

3 TITLE II—APPLICATION OF

4 QUALITY CARE STANDARDS

5 TO GROUP HEALTH PLANS

6 AND HEALTH INSURANCE

7 COVERAGE UNDER PUBLIC

8 HEALTH SERVICE ACT

9 SEC. 201. APPLICATION TO GROUP HEALTH PLANS AND

10 GROUP HEALTH INSURANCE COVERAGE.

11 (a) IN GENERAL.—Subpart 2 of part A of title

12 XXVII of the Public Health Service Act is amended by

13 adding at the end the following new section:

14 ‘‘SEC. 2706. PATIENT PROTECTION STANDARDS.

15 ‘‘(a) IN GENERAL.—Each group health plan shall

16 comply with patient protection requirements under title I

17 of the Access to Quality Care Act of 1999, and each health

18 insurance issuer shall comply with patient protection re19 quirements under such title with respect to group health

20 insurance coverage it offers, and such requirements shall

21 be deemed to be incorporated into this subsection.

22 ‘‘(b) NOTICE.—A group health plan shall comply with

23 the notice requirement under section 711(d) of the Em24 ployee Retirement Income Security Act of 1974 with re25 spect to the requirements referred to in subsection (a) and
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1 a health insurance issuer shall comply with such notice

2 requirement as if such section applied to such issuer and

3 such issuer were a group health plan.’’.

4 (b) CONFORMING AMENDMENT.—Section

5 2721(b)(1)(A) of such Act (42 U.S.C. 300gg–21(b)(1)(A))

6 is amended by inserting ‘‘(other than section 2706)’’ after

7 ‘‘requirements of such subparts’’.

8 SEC. 202. APPLICATION TO INDIVIDUAL HEALTH INSUR9 ANCE COVERAGE.

10 Part B of title XXVII of the Public Health Service

11 Act is amended by inserting after section 2751 the follow12 ing new section:

13 ‘‘SEC. 2752. PATIENT PROTECTION STANDARDS.

14 ‘‘(a) IN GENERAL.—Each health insurance issuer

15 shall comply with patient protection requirements under

16 title I of the Access to Quality Care Act of 1999 with re17 spect to individual health insurance coverage it offers, and

18 such requirements shall be deemed to be incorporated into

19 this subsection.

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

21 part shall comply with the notice requirement under sec22 tion 711(d) of the Employee Retirement Income Security

23 Act of 1974 with respect to the requirements of such title

24 as if such section applied to such issuer and such issuer

25 were a group health plan.’’.
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1 TITLE III—AMENDMENTS TO

2 THE EMPLOYEE RETIREMENT

3 INCOME SECURITY ACT OF

4 1974

5 SEC. 301. APPLICATION OF PATIENT PROTECTION STAND6 ARDS TO GROUP HEALTH PLANS AND GROUP

7 HEALTH INSURANCE COVERAGE UNDER THE

8 EMPLOYEE RETIREMENT INCOME SECURITY

9 ACT OF 1974.

10 Subpart B of part 7 of subtitle B of title I of the

11 Employee Retirement Income Security Act of 1974 is

12 amended by adding at the end the following new section:

13 ‘‘SEC. 713. PATIENT PROTECTION STANDARDS.

14 ‘‘A group health plan (and a health insurance issuer

15 offering group health insurance coverage in connection

16 with such a plan) shall comply with the requirements of

17 title I of the Access to Quality Care Act of 1999 (as in

18 effect as of the date of the enactment of such Act), and

19 such requirements shall be deemed to be incorporated into

20 this section.’’.
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1 SEC. 302. ERISA PREEMPTION NOT TO APPLY TO CERTAIN

2 ACTIONS INVOLVING HEALTH INSURANCE

3 POLICYHOLDERS.

4 (a) IN GENERAL.—Section 514 of the Employee Re5 tirement Income Security Act of 1974 (29 U.S.C. 1144)

6 is amended by adding at the end the following subsection:

7 ‘‘(e) PREEMPTION NOT TO APPLY TO CERTAIN AC8 TIONS ARISING OUT OF PROVISION OF HEALTH BENE9 FITS.—

10 ‘‘(1) IN GENERAL.—Except as provided in this

11 subsection, nothing in this title shall be construed to

12 invalidate, impair, or supersede any cause of action

13 under State law to recover damages resulting from

14 personal injury or for wrongful death against any

15 person—

16 ‘‘(A) in connection with the provision of in17 surance, administrative services, or medical

18 services by such person to or for a group health

19 plan (as defined in section 733), or

20 ‘‘(B) that arises out of the arrangement by

21 such person for the provision of such insurance,

22 administrative services, or medical services by

23 other persons.

24 ‘‘(2) EXCEPTION FOR EMPLOYERS AND OTHER

25 PLAN SPONSORS.—
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1 ‘‘(A) IN GENERAL.—Subject to subpara2 graph (B), paragraph (1) does not authorize—

3 ‘‘(i) any cause of action against an

4 employer or other plan sponsor maintain5 ing the group health plan, or

6 ‘‘(ii) a right of recovery or indemnity

7 by a person against an employer or other

8 plan sponsor for damages assessed against

9 the person pursuant to a cause of action

10 under paragraph (1).

11 ‘‘(B) SPECIAL RULE.—Subparagraph (A)

12 shall not preclude any cause of action described

13 in paragraph (1) against an employer or other

14 plan sponsor if—

15 ‘‘(i) such action is based on the em16 ployer’s or other plan sponsor’s exercise of

17 discretionary authority to make a decision

18 on a claim for benefits covered under the

19 plan or health insurance coverage in the

20 case at issue; and

21 ‘‘(ii) the exercise by such employer or

22 other plan sponsor of such authority re23 sulted in personal injury or wrongful

24 death.
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1 ‘‘(C) EXCEPTION.—The exercise of discre2 tionary authority described in subparagraph

3 (B)(i) shall not be construed to include—

4 ‘‘(i) the decision to include or exclude

5 from the plan any specific benefit;

6 ‘‘(ii) any decision affirming the deci7 sion of a treating health care professional;

8 or

9 ‘‘(iii) any decision to provide benefits

10 beyond those specified in the plan at the

11 request of a treating health care profes12 sional.’’.

13 (b) EFFECTIVE DATE.—The amendment made by

14 subsection (a) shall apply to acts and omissions occurring

15 on or after the date of the enactment of this Act from

16 which a cause of action arises.

17 SEC. 303. DIRECT ACCESS TO COURTS.

18 Section 502 of the Employee Retirement Income Se19 curity Act is amended—

20 (1) in subsection (a)(8) by striking ‘‘or’’ at the

21 end;

22 (2) in subsection (a)(9) by striking the period

23 at the end and inserting ‘‘; or’’;

24 (3) by adding at the end of subsection (a) the

25 following new paragraph:
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1 ‘‘(10) by a participant or beneficiary for appro2 priate relief under subsection (b)(4).’’; and

3 (4) by adding at the end of subsection (b) the

4 following new paragraph:

5 ‘‘(4) In any case in which exhaustion of admin6 istrative remedies otherwise necessary for an action

7 for relief has not been obtained and it is dem8 onstrated to the court by means of certification by

9 an appropriate physician that such exhaustion is not

10 reasonably attainable under the facts and cir11 cumstances without undue risk of irreparable harm

12 to the health of the participant or beneficiary, a civil

13 action may be brought by a participant or bene14 ficiary to obtain appropriate equitable relief. Any de15 terminations made while an action under this para16 graph is pending shall be given due consideration by

17 the court in any such action.’’.

18 TITLE IV—EFFECTIVE DATES;

19 COORDINATION IN IMPLE20 MENTATION

21 SEC. 401. EFFECTIVE DATES.

22 (a) GROUP HEALTH COVERAGE.—

23 (1) IN GENERAL.—Subject to paragraph (2),

24 the amendments made by sections 201(a) and 301

25 (and title I insofar as it relates to such sections)
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1 shall apply with respect to group health plans, and

2 health insurance coverage offered in connection with

3 group health plans, for plan years beginning on or

4 after January 1, 2000 (in this section referred to as

5 the ‘‘general effective date’’) and also shall apply to

6 portions of plan years occurring on and after such

7 date.

8 (2) TREATMENT OF COLLECTIVE BARGAINING

9 AGREEMENTS.—In the case of a group health plan

10 maintained pursuant to 1 or more collective bargain11 ing agreements between employee representatives

12 and 1 or more employers ratified before the date of

13 enactment of this Act, the amendments made by sec14 tions 201(a) and 301 (and title I insofar as it re15 lates to such sections) shall not apply to plan years

16 beginning before the later of—

17 (A) the date on which the last collective

18 bargaining agreements relating to the plan ter19 minates (determined without regard to any ex20 tension thereof agreed to after the date of en21 actment of this Act), or

22 (B) the general effective date.

23 For purposes of subparagraph (A), any plan amend24 ment made pursuant to a collective bargaining

25 agreement relating to the plan which amends the
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1 plan solely to conform to any requirement added by

2 this Act shall not be treated as a termination of

3 such collective bargaining agreement.

4 (b) INDIVIDUAL HEALTH INSURANCE COVERAGE.—

5 The amendments made by section 202 shall apply with

6 respect to individual health insurance coverage offered,

7 sold, issued, renewed, in effect, or operated in the individ8 ual market on or after the general effective date.

9 SEC. 402. COORDINATION IN IMPLEMENTATION.

10 Section 104(1) of Health Insurance Portability and

11 Accountability Act of 1996 is amended by striking ‘‘this

12 subtitle (and the amendments made by this subtitle and

13 section 401)’’ and inserting ‘‘the provisions of part 7 of

14 subtitle B of title I of the Employee Retirement Income

15 Security Act of 1974, the provisions of parts A and C of

16 title XXVII of the Public Health Service Act, chapter 100

17 of the Internal Revenue Code of 1986, and title I of the

18 Access to Quality Care Act of 1999’’.

Æ