I 

110TH CONGRESS 

2D SESSION H. R. 5028 

To amend the Employee Retirement Income Security Act of 1974 and the 

Internal Revenue Code of 1986 to require that group health plans provide 

coverage for pervasive developmental disorders such as autism. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 16, 2008 

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

Ways and Means, 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 Employee Retirement Income Security Act 

of 1974 and the Internal Revenue Code of 1986 to 

require that group health plans provide coverage for pervasive developmental disorders such as autism. 

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 ‘‘Fairness in Autism 

5 Treatment Act of 2007’’. 


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1 SEC. 2. AMENDMENTS TO THE EMPLOYEE RETIREMENT IN2 COME SECURITY ACT OF 1974. 

3 (a) IN GENERAL.—Subpart B of part 7 of subtitle 

4 B of title I of the Employee Retirement Income Security 

5 Act of 1974 (29 U.S.C. 1185 et seq.) is amended by add6 ing at the end the following new section: 

7 ‘‘SEC. 714. PARITY FOR PERVASIVE DEVELOPMENTAL DIS8 ORDERS. 

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

10 health insurance issuer providing health insurance cov11 erage offered in connection with such a plan) that provides 

12 both medical and surgical benefits shall provide coverage 

13 for pervasive developmental disorders, including coverage 

14 for therapeutic, respite, and rehabilitative care for partici15 pants or beneficiaries who have not attained 22 years of 

16 age. 

17 ‘‘(b) IN-NETWORK AND OUT-OF-NETWORK STAND18 ARDS.— 

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

20 health plan (or health insurance coverage offered in 

21 connection with such a plan) that provides benefits 

22 for pervasive developmental disorders, and that pro23 vides both in-network benefits for such disorders and 

24 out-of-network benefits for such disorders, the re25 quirements of this section shall apply separately with 

26 respect to benefits provided under the plan (or covVerDate Aug 31 2005 03:50 Jan 17, 2008 Jkt 069200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H5028.IH H5028

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1 erage) on an in-network basis and benefits provided 

2 under the plan (or coverage) on an out-of-network 

3 basis. 

4 ‘‘(2) CLARIFICATION.—Nothing in paragraph 

5 (1) shall be construed as requiring that a group 

6 health plan (or health insurance coverage offered in 

7 connection with such a plan) eliminate an out-of-net8 work provider option from such plan (or coverage) 

9 pursuant to the terms of the plan (or coverage). 

10 ‘‘(c) OTHER REQUIREMENTS.— 

11 ‘‘(1) ANNUAL OR LIFETIME DOLLAR LIMITA12 TIONS.—A group health plan (or health insurance 

13 coverage offered in connection with such a plan) 

14 may not impose any annual or lifetime dollar limita15 tion on benefits for pervasive developmental dis16 orders unless such limitation applies to all medical 

17 and surgical benefits and benefits for pervasive de18 velopmental disorders under the plan (or coverage). 

19 ‘‘(2) COST SHARING.—A group health plan (or 

20 health insurance coverage offered in connection with 

21 such a plan) may not impose a deductible, coinsur22 ance, or other cost-sharing with respect to the cov23 erage of pervasive developmental disorders under the 

24 plan (or coverage), which is greater than the deduct25 ible, coinsurance, or other cost-sharing, as the case 


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1 may be, imposed with respect to medical and sur2 gical benefits under the plan (or coverage). 

3 ‘‘(3) ELIGIBILITY TO ENROLL OR RENEW.—A 

4 group health plan (or a health insurance issuer pro5 viding health insurance coverage offered in connec6 tion with such a plan) may not deny eligibility, or 

7 continued eligibility, to enroll or to renew coverage 

8 under the term of the plan (or coverage), solely for 

9 the purpose of avoiding the requirements of this sec10 tion. 

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

12 imposition of the requirements of this section shall be 

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

14 described in the last sentence of section 102(a), for pur15 poses of assuring notice of such requirements under the 

16 plan; except that the summary description required to be 

17 provided under the fourth sentence of section 104(b)(1) 

18 with respect to such modification shall be provided by not 

19 later than 60 days after the first day of the first plan 

20 year in which such requirements apply. 

21 ‘‘(e) EXEMPTIONS.— 

22 ‘‘(1) SMALL EMPLOYER EXEMPTION.— 

23 ‘‘(A) IN GENERAL.—This section shall not 

24 apply to any group health plan (and group 

25 health insurance coverage offered in connection 


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1 with a group health plan) for any plan year of 

2 a small employer. 

3 ‘‘(B) SMALL EMPLOYER.—For purposes of 

4 subparagraph (A), the term ‘small employer’ 

5 means, in connection with a group health plan 

6 with respect to a calendar year and a plan year, 

7 an employer who employed an average of at 

8 least 2 (or 1 in the case of an employer residing 

9 in a State that permits small groups to include 

10 a single individual) but not more than 50 em11 ployees on business days during the preceding 

12 calendar year. 

13 ‘‘(C) APPLICATION OF CERTAIN RULES IN

14 DETERMINATION OF EMPLOYER SIZE.—For 

15 purposes of this paragraph— 

16 ‘‘(i) APPLICATION OF AGGREGATION

17 RULE FOR EMPLOYERS.—Rules similar to 

18 the rules under subsections (b), (c), (m), 

19 and (o) of section 414 of the Internal Rev20 enue Code of 1986 shall apply for purposes 

21 of treating persons as a single employer. 

22 ‘‘(ii) EMPLOYERS NOT IN EXISTENCE

23 IN PRECEDING YEAR.—In the case of an 

24 employer which was not in existence 

25 throughout the preceding calendar year, 


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1 the determination of whether such em2 ployer is a small employer shall be based 

3 on the average number of employees that 

4 it is reasonably expected such employer 

5 will employ on business days in the current 

6 calendar year. 

7 ‘‘(iii) PREDECESSORS.—Any reference 

8 in this paragraph to an employer shall in9 clude a reference to any predecessor of 

10 such employer. 

11 ‘‘(2) INCREASED COST EXEMPTION.—This sec12 tion shall not apply with respect to a group health 

13 plan (or group health insurance coverage offered in 

14 connection with a group health plan) if the applica15 tion of this section to such plan (or coverage) results 

16 in an increase in the cost under the plan (or cov17 erage) of at least 1 percent. 

18 ‘‘(f) PERVASIVE DEVELOPMENTAL DISORDER DE19 FINED.—For purposes of this section, the term ‘pervasive 

20 developmental disorder’ means any developmental dis21 ability (as defined in section 102(8) of the Developmental 

22 Disabilities Assistance and Bill of Rights Act of 2000 (42 

23 U.S.C. 15002(8))). 

24 ‘‘(g) PREEMPTION, RELATION TO STATE LAWS.— 


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1 ‘‘(1) IN GENERAL.—Nothing in this section 

2 shall be construed to preempt any State law in effect 

3 with respect to health insurance coverage to the ex4 tent the requirements of such law at least meet the 

5 requirements of this section. 

6 ‘‘(2) ERISA.—Nothing in this section shall be 

7 construed to affect or modify the provisions of sec8 tion 514 with respect to group health plans.’’. 

9 (b) CONFORMING AMENDMENTS.— 

10 (1) Section 731(c) of such Act (29 U.S.C. 

11 1191(c)) is amended by striking ‘‘section 711’’ and 

12 inserting ‘‘sections 711 and 714’’. 

13 (2) Section 732(a) of such Act (29 U.S.C. 

14 1191a(a)) is amended by striking ‘‘section 711’’ and 

15 inserting ‘‘sections 711 and 714’’. 

16 (c) CLERICAL AMENDMENT.—The table of contents 

17 in section 1 of such Act is amended by inserting after the 

18 item relating to section 713 the following new item: 

‘‘Sec. 714. Parity for pervasive developmental disorders.’’. 

19 (d) EFFECTIVE DATE.—The amendments made by 

20 this section shall apply with respect to plan years begin21 ning on or after January 1, 2009. 

22 SEC. 3. AMENDMENTS TO INTERNAL REVENUE CODE OF 

23 1986. 

24 (a) IN GENERAL.—Subchapter B of chapter 100 of 

25 the Internal Revenue Code of 1986 (relating to group 


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1 health plan requirements) is amended by adding at the 

2 end the following new section: 

3 ‘‘SEC. 9813. PARITY FOR PERVASIVE DEVELOPMENTAL DIS4 ORDERS. 

5 ‘‘(a) IN GENERAL.—A group health plan that pro6 vides both medical and surgical benefits shall provide cov7 erage for pervasive developmental disorders, including cov8 erage for therapeutic, respite, and rehabilitative care for 

9 participants or beneficiaries who have not attained 22 

10 years of age. 

11 ‘‘(b) IN-NETWORK AND OUT-OF-NETWORK STAND12 ARDS.— 

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

14 health plan that provides benefits for pervasive de15 velopmental disorders, and that provides both in-net16 work benefits for such disorders and out-of-network 

17 benefits for such disorders, the requirements of this 

18 section shall apply separately with respect to bene19 fits provided under the plan on an in-network basis 

20 and benefits provided under the plan on an out-of21 network basis. 

22 ‘‘(2) CLARIFICATION.—Nothing in paragraph 

23 (1) shall be construed as requiring that a group 

24 health plan eliminate an out-of-network provider opVerDate Aug 31 2005 03:50 Jan 17, 2008 Jkt 069200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H5028.IH H5028

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1 tion from such plan pursuant to the terms of the 

2 plan. 

3 ‘‘(c) OTHER REQUIREMENTS.— 

4 ‘‘(1) ANNUAL OR LIFETIME DOLLAR LIMITA5 TIONS.—A group health plan may not impose any 

6 annual or lifetime dollar limitation on benefits for 

7 pervasive developmental disorders unless such limita8 tion applies to all medical and surgical benefits and 

9 benefits for pervasive developmental disorders pro10 vided under the plan. 

11 ‘‘(2) COST SHARING.—A group health plan may 

12 not impose a deductible, coinsurance, or other cost13 sharing with respect to the coverage of pervasive de14 velopmental disorders under the plan, which is 

15 greater than the deductible, coinsurance, or other 

16 cost-sharing, as the case may be, imposed with re17 spect to medical and surgical benefits under the 

18 plan. 

19 ‘‘(3) ELIGIBILITY TO ENROLL OR RENEW.—A 

20 group health plan may not deny eligibility, or contin21 ued eligibility, to enroll or to renew coverage under 

22 the term of the plan, solely for the purpose of avoid23 ing the requirements of this section. 

24 ‘‘(d) EXEMPTIONS.— 

25 ‘‘(1) SMALL EMPLOYER EXEMPTION.— 


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1 ‘‘(A) IN GENERAL.—This section shall not 

2 apply to any group health plan for any plan 

3 year of a small employer. 

4 ‘‘(B) SMALL EMPLOYER.—For purposes of 

5 subparagraph (A), the term ‘small employer’ 

6 means, with respect to a calendar year and a 

7 plan year, an employer who employed an aver8 age of at least 2 (or 1 in the case of an em9 ployer residing in a State that permits small 

10 groups to include a single individual) but not 

11 more than 50 employees on business days dur12 ing the preceding calendar year. For purposes 

13 of the preceding sentence, all persons treated as 

14 a single employer under subsection (b), (c), 

15 (m), or (o) of section 414 shall be treated as 1 

16 employer and rules similar to rules of subpara17 graphs (B) and (C) of section 4980D(d)(2) 

18 shall apply. 

19 ‘‘(2) INCREASED COST EXEMPTION.—This sec20 tion shall not apply with respect to a group health 

21 plan if the application of this section to such plan 

22 results in an increase in the cost under the plan of 

23 at least 1 percent. 

24 ‘‘(e) PERVASIVE DEVELOPMENTAL DISORDER DE25 FINED.—For purposes of this section, the term ‘pervasive 


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1 developmental disorder’ means any developmental dis2 ability (as defined in section 102(8) of the Developmental 

3 Disabilities Assistance and Bill of Rights Act of 2000 (42 

4 U.S.C. 15002(8)).’’. 

5 (b) CONFORMING AMENDMENTS.—The table of sec6 tions for subchapter B of chapter 100 of such Code is 

7 amended by adding at the end the following new item: 

‘‘Sec. 9813. Parity for pervasive developmental disorders.’’. 

8 (c) EFFECTIVE DATE.—The amendments made by 

9 this section shall apply with respect to group health plans 

10 for plan years beginning on or after January 1, 2009. 

Æ 


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