I

105TH CONGRESS

1ST SESSION H. R. 586

To prohibit the restriction of certain types of medical communications between

a health care provider and a patient.

IN THE HOUSE OF REPRESENTATIVES

FEBRUARY 5, 1997

Mr. GANSKE (for himself, Mr. MARKEY, Mr. ABERCROMBIE, Mr. ACKERMAN,

Mr. BALDACCI, Mr. BALLENGER, Mr. BARCIA, Mr. BARRETT of Wisconsin, Mr. BENTSEN, Mr. BOEHLERT, Mr. BORSKI, Mr. BOUCHER, Mr.

BROWN of Ohio, Mr. BURTON of Indiana, Mr. CANADY of Florida, Mr.

CHABOT, Mr. CHAMBLISS, Mrs. CLAYTON, Mr. CLEMENT, Mr. COBURN,

Mr. CONDIT, Mr. COOKSEY, Mr. CRAPO, Mr. CUMMINGS, Mr. DAVIS of

Virginia, Mr. DAVIS of Illinois, Mr. DEFAZIO, Mr. DELAHUNT, Ms.

DELAURO, Mr. DELLUMS, Mr. DOOLEY of California, Mr. EHLERS, Ms.

ESHOO, Mr. EVANS, Mr. FALEOMAVAEGA, Mr. FATTAH, Mr. FILNER, Mr.

FOGLIETTA, Mr. FOX of Pennsylvania, Mr. FRANK of Massachusetts, Mr.

FROST, Ms. Furse, Mr. GEJDENSON, Mr. GILLMOR, Mr. GILMAN, Mr.

GORDON, Mr. GRAHAM, Mr. GREEN, Mr. GREENWOOD, Mr. HANSEN, Mr.

HASTINGS of Florida, Mr. HEFLEY, Mr. HINCHEY, Mr. HOSTETTLER,

Mr. HOUGHTON, Ms. EDDIE BERNICE JOHNSON of Texas, Mrs. KELLY,

Mr. KENNEDY of Massachusetts, Mr. KILDEE, Ms. KILPATRICK, Mr.

KIND, Mr. KING, Mr. KLECZKA, Mr. KLINK, Mr. LAFALCE, Mr.

LATHAM, Mr. LEACH, Mr. LEWIS of Georgia, Mr. LATOURETTE, Mr.

LOBIONDO, Ms. LOFGREN, Mrs. LOWEY, Mr. MCDERMOTT, Ms. MCKINNEY, Mrs. MALONEY of New York, Mr. MARTINEZ, Mr. MEEHAN, Mrs.

MEEK of Florida, Mr. MENENDEZ, Mr. MILLER of California, Mrs. MINK

of Hawaii, Mr. MORAN of Virginia, Mrs. MYRICK, Mr. NADLER, Mr.

NETHERCUTT, Mr. NEAL of Massachusetts, Mr. NEY, Mr. NORWOOD,

Mr. OLVER, Mr. OWENS, Mr. OXLEY, Mr. PASTOR, Mr. PAYNE, Ms.

PELOSI, Mr. PICKETT, Mr. PORTER, Mr. POSHARD, Ms. PRYCE of Ohio,

Mr. RAHALL, Mrs. ROUKEMA, Mr. RUSH, Mr. SANDERS, Mr. SAWYER,

Mr. SAXTON, Mr. SCARBOROUGH, Mr. SERRANO, Mr. SKAGGS, Mr.

SKEEN, Ms. SLAUGHTER, Mr. SMITH of New Jersey, Mr. SOLOMON, Mr.

STARK, Mr. STOKES, Mr. TAUZIN, Mr. THORNBERRY, Mrs. THURMAN,

Mr. TRAFICANT, Mr. WELDON of Florida, Mr. WALSH, Mr. WAXMAN,

Mr. WEYGAND, Mr. WHITFIELD, Mr. WISE, and Ms. WOOLSEY) introduced the following bill; which was referred to the Committee on Commerce, and in addition to the Committees on Ways and Means, and Education and the Workforce, for a period to be subsequently determined by
2

•HR 586 IH

the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL

To prohibit the restriction of certain types of medical communications between a health care provider and a patient.

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; FINDINGS.

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

5 ‘‘Patient Right to Know Act’’.

6 (b) FINDINGS.—Congress finds the following:

7 (1) Patients need access to all relevant informa8 tion to make appropriate decisions about their

9 health care.

10 (2) Open medical communications between

11 health care providers and their patients is a key to

12 prevention and early diagnosis and treatment, as

13 well as to informed consent and quality, cost-effec14 tive care.

15 (3) Open medical communications are in the

16 best interests of patients.

17 (4) Open medical communications must meet

18 applicable legal and ethical standards of care.
3

•HR 586 IH

1 (5) It is critical that health care providers con2 tinue to exercise their best medical, ethical, and

3 moral judgment in advising patients without inter4 ference from health plans.

5 (6) The offering and operation of health plans

6 affect commerce among the States.

7 (c) PURPOSE.—It is the purpose of this Act to estab8 lish a Federal standard that protects medical communica9 tions between health care providers and patients.

10 SEC. 2. PROHIBITION OF INTERFERENCE WITH CERTAIN

11 MEDICAL COMMUNICATIONS.

12 (a) PROHIBITION.—

13 (1) GENERAL RULE.—The provisions of any

14 contract or agreement, or the operation of any con15 tract or agreement, between an entity operating a

16 health plan (including any partnership, association,

17 or other organization that enters into or administers

18 such a contract or agreement) and a health care

19 provider (or group of health care providers) shall not

20 prohibit or restrict the provider from engaging in

21 medical communications with his or her patient.

22 (2) NULLIFICATION.—Any contract provision or

23 agreement described in paragraph (1) shall be null

24 and void.
4

•HR 586 IH

1 (3) PROHIBITION ON PROVISIONS.—Effective on

2 the date described in section 5, a contract or agree3 ment described in paragraph (1) shall not include a

4 provision that violates paragraph (1).

5 (b) RULES OF CONSTRUCTION.—Nothing in this Act

6 shall be construed—

7 (1) to prohibit the enforcement, as part of a

8 contract or agreement to which a health care pro9 vider is a party, of any mutually agreed upon terms

10 and conditions, including terms and conditions re11 quiring a health care provider to participate in, and

12 cooperate with, all programs, policies, and proce13 dures developed or operated by a health plan to as14 sure, review, or improve the quality and effective uti15 lization of health care services (if such utilization is

16 according to guidelines or protocols that are based

17 on clinical or scientific evidence and the professional

18 judgment of the provider) but only if the guidelines

19 or protocols under such utilization do not prohibit or

20 restrict medical communications between providers

21 and their patients; or

22 (2) to permit a health care provider to mis23 represent the scope of benefits covered under a
5

•HR 586 IH

1 health plan or to otherwise require the plan to reim2 burse providers for benefits not covered under the

3 plan

4 (c) ENFORCEMENT.—

5 (1) STATE AUTHORITY.—Except as otherwise

6 provided in this subsection, each State shall enforce

7 the provisions of this Act with respect to health in8 surance issuers that issue, sell, renew, or offer

9 health plans in the State.

10 (2) ENFORCEMENT BY SECRETARY.—

11 (A) IN GENERAL.—Effective on January 1,

12 1998, if the Secretary, after consultation with

13 the chief executive officer of a State and the in14 surance commissioner or chief insurance regu15 latory official of the State, determines that the

16 State has failed to substantially enforce the re17 quirements of this Act with respect to health in18 surance issuers in the State, the Secretary shall

19 enforce the requirements of this Act with re20 spect to such State.

21 (B) ENFORCEMENT THROUGH IMPOSITION

22 OF CIVIL MONEY PENALTY.—

23 (i) IN GENERAL.—With respect to a

24 State in which the Secretary is enforcing
6

•HR 586 IH

1 the requirements of this Act, an entity op2 erating a health plan in that State that

3 violates subsection (a) shall be subject to a

4 civil money penalty of up to $25,000 for

5 each such violation.

6 (ii) PROCEDURES.—For purposes of

7 imposing a civil money penalty under

8 clause (i), the provisions of subparagraphs

9 (C) through (G) of section 2722(b)(2) of

10 the Health Insurance Portability and Ac11 countability Act of 1996 (42 U.S.C.

12 300gg–22(b)(2)) shall apply except that

13 the provisions of clause (i) of subpara14 graph (C) of such section shall not apply.

15 (3) SELF-INSURED PLANS.—Effective on Janu16 ary 1, 1998, the Secretary of Labor shall enforce the

17 requirements of this section in the case of a health

18 plan not subject to State regulation by reason of sec19 tion 514(b) of the Employee Retirement Income Se20 curity Act of 1974 (29 U.S.C. 1144(b)).

21 (4) RULE OF CONSTRUCTION.—Nothing in this

22 Act shall be construed to affect or modify the provi23 sions of section 514 of the Employee Retirement In24 come Security Act of 1974 (29 U.S.C. 1144).
7

•HR 586 IH

1 (d) NO PREEMPTION OF MORE PROTECTIVE

2 LAWS.—A State may establish or enforce requirements

3 with respect to the protection of medical communications,

4 but only if such requirements are equal to or more protec5 tive of such communications than the requirements estab6 lished under this section.

7 SEC. 3. PROTECTION OF RELIGIOUS OR MORAL EXPRES8 SION.

9 (a) IN GENERAL.—An entity operating a health plan

10 may fully advise—

11 (1) licensed or certified health care providers at

12 the time of their employment with the plan or at any

13 time during such employment; or

14 (2) participants or beneficiaries at the time of

15 their enrollment under the plan or at any time dur16 ing which such participants or enrollees are covered

17 under the plan;

18 of the plan’s limitations on providing particular medical

19 services (including limitations on referrals for care pro20 vided outside of the plan) based on the religious or moral

21 convictions of the entity.

22 (b) HEALTH CARE PROVIDERS.—Nothing in this Act

23 shall be construed to alter the rights and duties of a health

24 care provider to determine what medical communications
8

•HR 586 IH

1 are appropriate with respect to each patient, except as

2 provided for in section 2.

3 SEC. 4. DEFINITIONS.

4 In this Act:

5 (1) HEALTH CARE PROVIDER.—The term

6 ‘‘health care provider’’ means anyone licensed or cer7 tified under State law to provide health care services

8 who is operating within the scope of such license.

9 (2) HEALTH INSURANCE ISSUER.—The term

10 ‘‘health insurance issuer’’ has the meaning given

11 such term in section 2791(b)(2) of the Public Health

12 Service Act (as added by the Health Insurance Port13 ability and Accountability Act of 1996).

14 (3) HEALTH PLAN.—The term ‘‘health plan’’

15 means a group health plan (as defined in section

16 2791(a) of the Public Health Service Act (as added

17 by the Health Insurance Portability and Account18 ability Act of 1996)) and any individual health in19 surance (as defined in section 2791(b)(5)) operated

20 by a health insurance issuer and includes any other

21 health care coverage provided through a private or

22 public entity. In the case of a health plan that is an

23 employee welfare benefit plan (as defined in section

24 3(1) of the Employee Retirement Income Security

25 Act of 1974), any third party administrator or other
9

•HR 586 IH

1 person with responsibility for contracts with health

2 care providers under the plan shall be considered,

3 for purposes of enforcement under this section, to be

4 a health insurance issuer operating such health plan.

5 (4) MEDICAL COMMUNICATION.—

6 (A) IN GENERAL.—The term ‘‘medical

7 communication’’ means any communication

8 made by a health care provider with a patient

9 of the health care provider (or the guardian or

10 legal representative of such patient) with re11 spect to—

12 (i) the patient’s health status, medical

13 care, or treatment options;

14 (ii) any utilization review require15 ments that may affect treatment options

16 for the patient; or

17 (iii) any financial incentives that may

18 affect the treatment of the patient.

19 (B) MISREPRESENTATION.—The term

20 ‘‘medical communication’’ does not include a

21 communication by a health care provider with a

22 patient of the health care provider (or the

23 guardian or legal representative of such patient)

24 if the communication involves a knowing or will25 ful misrepresentation by such provider.
10

•HR 586 IH

1 (5) SECRETARY.—The term ‘‘Secretary’’ means

2 the Secretary of Health and Human Services.

3 SEC. 5. EFFECTIVE DATE.

4 This Act shall take effect on the date of enactment

5 of this Act, except that section 2(a)(3) shall take effect

6 180 days after such date of enactment.

Æ