II 

110TH CONGRESS 

1ST SESSION S. 459 

To require that health plans provide coverage for a minimum hospital stay 

for mastectomies, lumpectomies, and lymph node dissection for the treatment of breast cancer and coverage for secondary consultations. 

IN THE SENATE OF THE UNITED STATES 

JANUARY 31, 2007 

Ms. SNOWE (for herself, Ms. LANDRIEU, Mr. COCHRAN, Mrs. MURRAY, Mr. 

LAUTENBERG, Mr. DURBIN, Mrs. CLINTON, Mr. SANDERS, Mrs. FEINSTEIN, Mrs. BOXER, Ms. CANTWELL, Ms. MIKULSKI, Mr. HARKIN, Mr. 

SCHUMER, and Mr. MENENDEZ) introduced the following bill; which was 

read twice and referred to the Committee on Health, Education, Labor, 

and Pensions 

A BILL 

To require that health plans provide coverage for a minimum 

hospital stay for mastectomies, lumpectomies, and lymph 

node dissection for the treatment of breast cancer and 

coverage for secondary consultations. 

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 ‘‘Breast Cancer Patient 

5 Protection Act of 2007’’. 


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1 SEC. 2. FINDINGS. 

2 Congress finds that— 

3 (1) the offering and operation of health plans 

4 affect commerce among the States; 

5 (2) health care providers located in a State 

6 serve patients who reside in the State and patients 

7 who reside in other States; 

8 (3) in order to provide for uniform treatment of 

9 health care providers and patients among the States, 

10 it is necessary to cover health plans operating in 1 

11 State as well as health plans operating among the 

12 several States; 

13 (4) currently, 20 States mandate minimum hos14 pital stay coverage after a patient undergoes a mas15 tectomy; 

16 (5) according to the American Center Society, 

17 there were 40,954 deaths due to breast cancer in 

18 2004; 

19 (6) according to the American Cancer Society, 

20 there are currently over 2.0 million women living in 

21 the United States who have been treated for breast 

22 cancer; and 

23 (7) according to the American Cancer Society, 

24 a woman in the United States has a 1 in 8 chance 

25 of developing invasive breast cancer in her lifetime. 


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1 SEC. 3. 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: 

7 ‘‘SEC. 714. REQUIRED COVERAGE FOR MINIMUM HOSPITAL 

8 STAY FOR MASTECTOMIES, LUMPECTOMIES, 

9 AND LYMPH NODE DISSECTIONS FOR THE 

10 TREATMENT OF BREAST CANCER AND COV11 ERAGE FOR SECONDARY CONSULTATIONS. 

12 ‘‘(a) INPATIENT CARE.— 

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

14 health insurance issuer providing health insurance 

15 coverage in connection with a group health plan, 

16 that provides medical and surgical benefits shall en17 sure that inpatient (and in the case of a 

18 lumpectomy, outpatient) coverage and radiation 

19 therapy is provided for breast cancer treatment. 

20 Such plan or coverage may not— 

21 ‘‘(A) except as provided for in paragraph 

22 (2)— 

23 ‘‘(i) restrict benefits for any hospital 

24 length of stay in connection with a mastec25 tomy or breast conserving surgery (such as 


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1 a lumpectomy) for the treatment of breast 

2 cancer to less than 48 hours; or 

3 ‘‘(ii) restrict benefits for any hospital 

4 length of stay in connection with a lymph 

5 node dissection for the treatment of breast 

6 cancer to less than 24 hours; or 

7 ‘‘(B) require that a provider obtain author8 ization from the plan or the issuer for pre9 scribing any length of stay required under sub10 paragraph (A) (without regard to paragraph 

11 (2)). 

12 ‘‘(2) EXCEPTION.—Nothing in this section shall 

13 be construed as requiring the provision of inpatient 

14 coverage if the attending physician and patient de15 termine that either a shorter period of hospital stay, 

16 or outpatient treatment, is medically appropriate. 

17 ‘‘(b) PROHIBITION ON CERTAIN MODIFICATIONS.— 

18 In implementing the requirements of this section, a group 

19 health plan, and a health insurance issuer providing health 

20 insurance coverage in connection with a group health plan, 

21 may not modify the terms and conditions of coverage 

22 based on the determination by a participant or beneficiary 

23 to request less than the minimum coverage required under 

24 subsection (a). 


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1 ‘‘(c) NOTICE.—A group health plan, and a health in2 surance issuer providing health insurance coverage in con3 nection with a group health plan shall provide notice to 

4 each participant and beneficiary under such plan regard5 ing the coverage required by this section in accordance 

6 with regulations promulgated by the Secretary. Such no7 tice shall be in writing and prominently positioned in any 

8 literature or correspondence made available or distributed 

9 by the plan or issuer and shall be transmitted— 

10 ‘‘(1) in the next mailing made by the plan or 

11 issuer to the participant or beneficiary; or 

12 ‘‘(2) as part of any yearly informational packet 

13 sent to the participant or beneficiary; 

14 whichever is earlier. 

15 ‘‘(d) SECONDARY CONSULTATIONS.— 

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

17 health insurance issuer providing health insurance 

18 coverage in connection with a group health plan, 

19 that provides coverage with respect to medical and 

20 surgical services provided in relation to the diagnosis 

21 and treatment of cancer shall ensure that full cov22 erage is provided for secondary consultations by spe23 cialists in the appropriate medical fields (including 

24 pathology, radiology, and oncology) to confirm or re25 fute such diagnosis. Such plan or issuer shall ensure 


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1 that full coverage is provided for such secondary 

2 consultation whether such consultation is based on a 

3 positive or negative initial diagnosis. In any case in 

4 which the attending physician certifies in writing 

5 that services necessary for such a secondary con6 sultation are not sufficiently available from special7 ists operating under the plan with respect to whose 

8 services coverage is otherwise provided under such 

9 plan or by such issuer, such plan or issuer shall en10 sure that coverage is provided with respect to the 

11 services necessary for the secondary consultation 

12 with any other specialist selected by the attending 

13 physician for such purpose at no additional cost to 

14 the individual beyond that which the individual 

15 would have paid if the specialist was participating in 

16 the network of the plan. 

17 ‘‘(2) EXCEPTION.—Nothing in paragraph (1) 

18 shall be construed as requiring the provision of sec19 ondary consultations where the patient determines 

20 not to seek such a consultation. 

21 ‘‘(e) PROHIBITION ON PENALTIES OR INCENTIVES.— 

22 A group health plan, and a health insurance issuer pro23 viding health insurance coverage in connection with a 

24 group health plan, may not— 


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1 ‘‘(1) penalize or otherwise reduce or limit the 

2 reimbursement of a provider or specialist because 

3 the provider or specialist provided care to a partici4 pant or beneficiary in accordance with this section; 

5 ‘‘(2) provide financial or other incentives to a 

6 physician or specialist to induce the physician or 

7 specialist to keep the length of inpatient stays of pa8 tients following a mastectomy, lumpectomy, or a 

9 lymph node dissection for the treatment of breast 

10 cancer below certain limits or to limit referrals for 

11 secondary consultations; 

12 ‘‘(3) provide financial or other incentives to a 

13 physician or specialist to induce the physician or 

14 specialist to refrain from referring a participant or 

15 beneficiary for a secondary consultation that would 

16 otherwise be covered by the plan or coverage in17 volved under subsection (d); or 

18 ‘‘(4) deny to a woman eligibility, or continued 

19 eligibility, to enroll or to renew coverage under the 

20 terms of the plan or coverage solely for the purpose 

21 of avoiding the requirements of this section.’’. 

22 (b) CLERICAL AMENDMENT.—The table of contents 

23 in section 1 of the Employee Retirement Income Security 

24 Act of 1974 is amended by inserting after the item relat25 ing to section 713 the following: 


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‘‘Sec. 714. Required coverage for minimum hospital stay for mastectomies, 

lumpectomies, and lymph node dissections for the treatment of 

breast cancer and coverage for secondary consultations.’’. 

1 (c) EFFECTIVE DATES.— 

2 (1) IN GENERAL.—The amendments made by 

3 this section shall apply with respect to plan years be4 ginning on or after the date that is 90 days after 

5 the date of enactment of this Act. 

6 (2) SPECIAL RULE FOR COLLECTIVE BAR7 GAINING AGREEMENTS.—In the case of a group 

8 health plan maintained pursuant to 1 or more collec9 tive bargaining agreements between employee rep10 resentatives and 1 or more employers ratified before 

11 the date of enactment of this Act, the amendments 

12 made by this section shall not apply to plan years 

13 beginning before the date on which the last collective 

14 bargaining agreements relating to the plan termi15 nates (determined without regard to any extension 

16 thereof agreed to after the date of enactment of this 

17 Act). For purposes of this paragraph, any plan 

18 amendment made pursuant to a collective bargaining 

19 agreement relating to the plan which amends the 

20 plan solely to conform to any requirement added by 

21 this section shall not be treated as a termination of 

22 such collective bargaining agreement. 


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1 SEC. 4. AMENDMENTS TO THE PUBLIC HEALTH SERVICE 

2 ACT RELATING TO THE GROUP MARKET. 

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

4 XXVII of the Public Health Service Act (42 U.S.C. 

5 300gg–4 et seq.) is amended by adding at the end the 

6 following: 

7 ‘‘SEC. 2707. REQUIRED COVERAGE FOR MINIMUM HOSPITAL 

8 STAY FOR MASTECTOMIES, LUMPECTOMIES, 

9 AND LYMPH NODE DISSECTIONS FOR THE 

10 TREATMENT OF BREAST CANCER AND COV11 ERAGE FOR SECONDARY CONSULTATIONS. 

12 ‘‘(a) INPATIENT CARE.— 

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

14 health insurance issuer providing health insurance 

15 coverage in connection with a group health plan, 

16 that provides medical and surgical benefits shall en17 sure that inpatient (and in the case of a 

18 lumpectomy, outpatient) coverage and radiation 

19 therapy is provided for breast cancer treatment. 

20 Such plan or coverage may not— 

21 ‘‘(A) except as provided for in paragraph 

22 (2)— 

23 ‘‘(i) restrict benefits for any hospital 

24 length of stay in connection with a mastec25 tomy or breast conserving surgery (such as 


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1 a lumpectomy) for the treatment of breast 

2 cancer to less than 48 hours; or 

3 ‘‘(ii) restrict benefits for any hospital 

4 length of stay in connection with a lymph 

5 node dissection for the treatment of breast 

6 cancer to less than 24 hours; or 

7 ‘‘(B) require that a provider obtain author8 ization from the plan or the issuer for pre9 scribing any length of stay required under sub10 paragraph (A) (without regard to paragraph 

11 (2)). 

12 ‘‘(2) EXCEPTION.—Nothing in this section shall 

13 be construed as requiring the provision of inpatient 

14 coverage if the attending physician and patient de15 termine that either a shorter period of hospital stay, 

16 or outpatient treatment, is medically appropriate. 

17 ‘‘(b) PROHIBITION ON CERTAIN MODIFICATIONS.— 

18 In implementing the requirements of this section, a group 

19 health plan, and a health insurance issuer providing health 

20 insurance coverage in connection with a group health plan, 

21 may not modify the terms and conditions of coverage 

22 based on the determination by a participant or beneficiary 

23 to request less than the minimum coverage required under 

24 subsection (a). 


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1 ‘‘(c) NOTICE.—A group health plan, and a health in2 surance issuer providing health insurance coverage in con3 nection with a group health plan shall provide notice to 

4 each participant and beneficiary under such plan regard5 ing the coverage required by this section in accordance 

6 with regulations promulgated by the Secretary. Such no7 tice shall be in writing and prominently positioned in any 

8 literature or correspondence made available or distributed 

9 by the plan or issuer and shall be transmitted— 

10 ‘‘(1) in the next mailing made by the plan or 

11 issuer to the participant or beneficiary; or 

12 ‘‘(2) as part of any yearly informational packet 

13 sent to the participant or beneficiary; 

14 whichever is earlier. 

15 ‘‘(d) SECONDARY CONSULTATIONS.— 

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

17 health insurance issuer providing health insurance 

18 coverage in connection with a group health plan that 

19 provides coverage with respect to medical and sur20 gical services provided in relation to the diagnosis 

21 and treatment of cancer shall ensure that full cov22 erage is provided for secondary consultations by spe23 cialists in the appropriate medical fields (including 

24 pathology, radiology, and oncology) to confirm or re25 fute such diagnosis. Such plan or issuer shall ensure 


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•S 459 IS

1 that full coverage is provided for such secondary 

2 consultation whether such consultation is based on a 

3 positive or negative initial diagnosis. In any case in 

4 which the attending physician certifies in writing 

5 that services necessary for such a secondary con6 sultation are not sufficiently available from special7 ists operating under the plan with respect to whose 

8 services coverage is otherwise provided under such 

9 plan or by such issuer, such plan or issuer shall en10 sure that coverage is provided with respect to the 

11 services necessary for the secondary consultation 

12 with any other specialist selected by the attending 

13 physician for such purpose at no additional cost to 

14 the individual beyond that which the individual 

15 would have paid if the specialist was participating in 

16 the network of the plan. 

17 ‘‘(2) EXCEPTION.—Nothing in paragraph (1) 

18 shall be construed as requiring the provision of sec19 ondary consultations where the patient determines 

20 not to seek such a consultation. 

21 ‘‘(e) PROHIBITION ON PENALTIES OR INCENTIVES.— 

22 A group health plan, and a health insurance issuer pro23 viding health insurance coverage in connection with a 

24 group health plan, may not— 


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•S 459 IS

1 ‘‘(1) penalize or otherwise reduce or limit the 

2 reimbursement of a provider or specialist because 

3 the provider or specialist provided care to a partici4 pant or beneficiary in accordance with this section; 

5 ‘‘(2) provide financial or other incentives to a 

6 physician or specialist to induce the physician or 

7 specialist to keep the length of inpatient stays of pa8 tients following a mastectomy, lumpectomy, or a 

9 lymph node dissection for the treatment of breast 

10 cancer below certain limits or to limit referrals for 

11 secondary consultations; 

12 ‘‘(3) provide financial or other incentives to a 

13 physician or specialist to induce the physician or 

14 specialist to refrain from referring a participant or 

15 beneficiary for a secondary consultation that would 

16 otherwise be covered by the plan or coverage in17 volved under subsection (d); or 

18 ‘‘(4) deny to a woman eligibility, or continued 

19 eligibility, to enroll or to renew coverage under the 

20 terms of the plan or coverage solely for the purpose 

21 of avoiding the requirements of this section.’’. 

22 (b) EFFECTIVE DATES.— 

23 (1) IN GENERAL.—The amendments made by 

24 this section shall apply to group health plans for 


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1 plan years beginning on or after 90 days after the 

2 date of enactment of this Act. 

3 (2) SPECIAL RULE FOR COLLECTIVE BAR4 GAINING AGREEMENTS.—In the case of a group 

5 health plan maintained pursuant to 1 or more collec6 tive bargaining agreements between employee rep7 resentatives and 1 or more employers ratified before 

8 the date of enactment of this Act, the amendments 

9 made by this section shall not apply to plan years 

10 beginning before the date on which the last collective 

11 bargaining agreements relating to the plan termi12 nates (determined without regard to any extension 

13 thereof agreed to after the date of enactment of this 

14 Act). For purposes of this paragraph, any plan 

15 amendment made pursuant to a collective bargaining 

16 agreement relating to the plan which amends the 

17 plan solely to conform to any requirement added by 

18 this section shall not be treated as a termination of 

19 such collective bargaining agreement. 

20 SEC. 5. AMENDMENT TO THE PUBLIC HEALTH SERVICE ACT 

21 RELATING TO THE INDIVIDUAL MARKET. 

22 (a) IN GENERAL.—The first subpart 3 of part B of 

23 title XXVII of the Public Health Service Act (42 U.S.C. 

24 300gg–11 et seq.) is amended— 

25 (1) by adding after section 2752 the following: 


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1 ‘‘SEC. 2753. REQUIRED COVERAGE FOR MINIMUM HOSPITAL 

2 STAY FOR MASTECTOMIES, LUMPECTOMIES, 

3 AND LYMPH NODE DISSECTIONS FOR THE 

4 TREATMENT OF BREAST CANCER AND SEC5 ONDARY CONSULTATIONS. 

6 ‘‘The provisions of section 2707 shall apply to health 

7 insurance coverage offered by a health insurance issuer 

8 in the individual market in the same manner as they apply 

9 to health insurance coverage offered by a health insurance 

10 issuer in connection with a group health plan in the small 

11 or large group market.’’; and 

12 (2) by redesignating such subpart 3 as subpart 

13 2. 

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

15 this section shall apply with respect to health insurance 

16 coverage offered, sold, issued, renewed, in effect, or oper17 ated in the individual market on or after the date of enact18 ment of this Act. 

19 SEC. 6. AMENDMENTS TO THE INTERNAL REVENUE CODE 

20 OF 1986. 

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

22 the Internal Revenue Code of 1986 is amended— 

23 (1) in the table of sections, by inserting after 

24 the item relating to section 9812 the following: 

‘‘Sec. 9813. Required coverage for minimum hospital stay for mastectomies, 

lumpectomies, and lymph node dissections for the treatment of 

breast cancer and coverage for secondary consultations.’’; and 


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1 (2) by inserting after section 9812 the fol2 lowing: 

3 ‘‘SEC. 9813. REQUIRED COVERAGE FOR MINIMUM HOSPITAL 

4 STAY FOR MASTECTOMIES, LUMPECTOMIES, 

5 AND LYMPH NODE DISSECTIONS FOR THE 

6 TREATMENT OF BREAST CANCER AND COV7 ERAGE FOR SECONDARY CONSULTATIONS. 

8 ‘‘(a) INPATIENT CARE.— 

9 ‘‘(1) IN GENERAL.—A group health plan that 

10 provides medical and surgical benefits shall ensure 

11 that inpatient (and in the case of a lumpectomy, 

12 outpatient) coverage and radiation therapy is pro13 vided for breast cancer treatment. Such plan may 

14 not— 

15 ‘‘(A) except as provided for in paragraph 

16 (2)— 

17 ‘‘(i) restrict benefits for any hospital 

18 length of stay in connection with a mastec19 tomy or breast conserving surgery (such as 

20 a lumpectomy) for the treatment of breast 

21 cancer to less than 48 hours; or 

22 ‘‘(ii) restrict benefits for any hospital 

23 length of stay in connection with a lymph 

24 node dissection for the treatment of breast 

25 cancer to less than 24 hours; or 


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1 ‘‘(B) require that a provider obtain author2 ization from the plan for prescribing any length 

3 of stay required under subparagraph (A) (with4 out regard to paragraph (2)). 

5 ‘‘(2) EXCEPTION.—Nothing in this section shall 

6 be construed as requiring the provision of inpatient 

7 coverage if the attending physician and patient de8 termine that either a shorter period of hospital stay, 

9 or outpatient treatment, is medically appropriate. 

10 ‘‘(b) PROHIBITION ON CERTAIN MODIFICATIONS.— 

11 In implementing the requirements of this section, a group 

12 health plan may not modify the terms and conditions of 

13 coverage based on the determination by a participant or 

14 beneficiary to request less than the minimum coverage re15 quired under subsection (a). 

16 ‘‘(c) NOTICE.—A group health plan shall provide no17 tice to each participant and beneficiary under such plan 

18 regarding the coverage required by this section in accord19 ance with regulations promulgated by the Secretary. Such 

20 notice shall be in writing and prominently positioned in 

21 any literature or correspondence made available or distrib22 uted by the plan and shall be transmitted— 

23 ‘‘(1) in the next mailing made by the plan to 

24 the participant or beneficiary; or 


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1 ‘‘(2) as part of any yearly informational packet 

2 sent to the participant or beneficiary; 

3 whichever is earlier. 

4 ‘‘(d) SECONDARY CONSULTATIONS.— 

5 ‘‘(1) IN GENERAL.—A group health plan that 

6 provides coverage with respect to medical and sur7 gical services provided in relation to the diagnosis 

8 and treatment of cancer shall ensure that full cov9 erage is provided for secondary consultations by spe10 cialists in the appropriate medical fields (including 

11 pathology, radiology, and oncology) to confirm or re12 fute such diagnosis. Such plan or issuer shall ensure 

13 that full coverage is provided for such secondary 

14 consultation whether such consultation is based on a 

15 positive or negative initial diagnosis. In any case in 

16 which the attending physician certifies in writing 

17 that services necessary for such a secondary con18 sultation are not sufficiently available from special19 ists operating under the plan with respect to whose 

20 services coverage is otherwise provided under such 

21 plan or by such issuer, such plan or issuer shall en22 sure that coverage is provided with respect to the 

23 services necessary for the secondary consultation 

24 with any other specialist selected by the attending 

25 physician for such purpose at no additional cost to 


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1 the individual beyond that which the individual 

2 would have paid if the specialist was participating in 

3 the network of the plan. 

4 ‘‘(2) EXCEPTION.—Nothing in paragraph (1) 

5 shall be construed as requiring the provision of sec6 ondary consultations where the patient determines 

7 not to seek such a consultation. 

8 ‘‘(e) PROHIBITION ON PENALTIES.—A group health 

9 plan may not— 

10 ‘‘(1) penalize or otherwise reduce or limit the 

11 reimbursement of a provider or specialist because 

12 the provider or specialist provided care to a partici13 pant or beneficiary in accordance with this section; 

14 ‘‘(2) provide financial or other incentives to a 

15 physician or specialist to induce the physician or 

16 specialist to keep the length of inpatient stays of pa17 tients following a mastectomy, lumpectomy, or a 

18 lymph node dissection for the treatment of breast 

19 cancer below certain limits or to limit referrals for 

20 secondary consultations; 

21 ‘‘(3) provide financial or other incentives to a 

22 physician or specialist to induce the physician or 

23 specialist to refrain from referring a participant or 

24 beneficiary for a secondary consultation that would 


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1 otherwise be covered by the plan involved under sub2 section (d); or 

3 ‘‘(4) deny to a woman eligibility, or continued 

4 eligibility, to enroll or to renew coverage under the 

5 terms of the plan solely for the purpose of avoiding 

6 the requirements of this section.’’. 

7 (b) CLERICAL AMENDMENT.—The table of contents 

8 for chapter 100 of such Code is amended by inserting after 

9 the item relating to section 9812 the following: 

‘‘Sec. 9813. Required coverage for minimum hospital stay for mastectomies, 

lumpectomies, and lymph node dissections for the treatment of 

breast cancer and coverage for secondary consultations.’’. 

10 (c) EFFECTIVE DATES.— 

11 (1) IN GENERAL.—The amendments made by 

12 this section shall apply with respect to plan years be13 ginning on or after the date of enactment of this 

14 Act. 

15 (2) SPECIAL RULE FOR COLLECTIVE BAR16 GAINING AGREEMENTS.—In the case of a group 

17 health plan maintained pursuant to 1 or more collec18 tive bargaining agreements between employee rep19 resentatives and 1 or more employers ratified before 

20 the date of enactment of this Act, the amendments 

21 made by this section shall not apply to plan years 

22 beginning before the date on which the last collective 

23 bargaining agreements relating to the plan termi24 nates (determined without regard to any extension 


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1 thereof agreed to after the date of enactment of this 

2 Act). For purposes of this paragraph, any plan 

3 amendment made pursuant to a collective bargaining 

4 agreement relating to the plan which amends the 

5 plan solely to conform to any requirement added by 

6 this section shall not be treated as a termination of 

7 such collective bargaining agreement. 

Æ 


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