II 

111TH CONGRESS 

2D SESSION S. 3223 

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

Public Health Service Act to provide parity under group health plans 

and group health insurance coverage for the provision of benefits for 

prosthetics and custom orthotics and benefits for other medical and 

surgical services. 

IN THE SENATE OF THE UNITED STATES 

APRIL 19, 2010 

Ms. SNOWE (for herself and Mr. HARKIN) introduced the following bill; which 

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

Labor, and Pensions 

A BILL 

To amend the Employee Retirement Income Security Act 

of 1974 and the Public Health Service Act to provide 

parity under group health plans and group health insurance coverage for the provision of benefits for prosthetics 

and custom orthotics and benefits for other medical and 

surgical services. 

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 ‘‘Prosthetics and Cus5 tom Orthotics Parity Act of 2010’’. 


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1 SEC. 2. FINDINGS AND PURPOSE. 

2 (a) FINDINGS.—Congress makes the following find3 ings: 

4 (1) There are more than 1,700,000 people in 

5 the United States living with limb loss, many of 

6 whom are appropriate candidates for prosthetic care. 

7 A comparable number experience trauma, illness, or 

8 disability that results in musculoskeletal or neuro9 muscular impairment of the limbs, back, and neck 

10 requiring the use of orthotic care. 

11 (2) Every year, there are more than 130,000 

12 people in the United States who undergo amputation 

13 procedures. 

14 (3) In addition, United States military per15 sonnel serving in Iraq and Afghanistan and around 

16 the world have sustained traumatic injuries resulting 

17 in amputation and musculoskeletal or neuromuscular 

18 injury. 

19 (4) The number of amputations in the United 

20 States is projected to increase in the years ahead 

21 due to the rising incidence of diabetes and other 

22 chronic illness. 

23 (5) Those experiencing limb loss and limb dys24 function can and want to regain their lives as pro25 ductive members of society. 


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1 (6) Prosthetic and orthotic care often enables 

2 amputees and others with orthopedic impairments to 

3 continue working and living productive lives. 

4 (7) Insurance companies have begun to limit re5 imbursement of prosthetic and custom orthotic care 

6 costs to unrealistic levels and often restrict coverage 

7 over an individual’s lifetime, which shifts costs onto 

8 the Medicare and Medicaid programs. 

9 (8) Eighteen States have addressed this prob10 lem and have prosthetic or orthotic parity legisla11 tion. 

12 (9) Prosthetic and orthotic parity legislation 

13 has been introduced and is being actively considered 

14 in 20 States. 

15 (10) The States in which prosthetic or orthotic 

16 parity laws have been enacted have found there to 

17 be minimal or no increases in insurance premiums 

18 and have reduced Medicare and Medicaid costs. 

19 (11) Prosthetic or orthotic parity legislation will 

20 not add to the size of government or to the costs as21 sociated with the Medicare and Medicaid programs. 

22 (12) If coverage for prosthetics and custom 

23 orthotics are offered by a group health insurance 

24 policy, then providing such prosthetic coverage on 

25 par with other medical and surgical benefits will not 


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1 increase the incidence of amputations or the number 

2 of individuals for which a prosthetic or custom 

3 orthotic device would be medically necessary and ap4 propriate. 

5 (13) In States where prosthetic or orthotic par6 ity legislation has been enacted, amputees and oth7 ers with orthopedic impairments are able to return 

8 to productive lives, State funds have been saved, and 

9 the health insurance industry has continued to pros10 per. 

11 (14) Prosthetic and orthotic devices and related 

12 services allow people to return more quickly to their 

13 preexisting work. 

14 (15) States have, and should continue to be 

15 permitted to, create consumer protections that ex16 ceed the Federal floor of protection provided for in 

17 this Act. 

18 (b) PURPOSE.—It is the purpose of this Act to re19 quire that each group health plan that provides medical 

20 and surgical benefits and also provides coverage for pros21 thetics or custom orthotics (or both), provide such cov22 erage under terms and conditions that are no less favor23 able than the terms and conditions under which medical 

24 and surgical benefits are provided under such plan. 


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1 SEC. 3. PROSTHETICS AND CUSTOM ORTHOTICS PARITY. 

2 (a) ERISA.— 

3 (1) IN GENERAL.—Subpart B of part 7 of sub4 title B of title I of the Employee Retirement Income 

5 Security Act of 1974 (29 U.S.C. 1185 et seq.) is 

6 amended by adding at the end the following: 

7 ‘‘SEC. 715. PROSTHETICS AND CUSTOM ORTHOTICS PARITY. 

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

9 plan (or health insurance coverage offered in connection 

10 with a group health plan) that provides medical and sur11 gical benefits and also provides benefits for prosthetics or 

12 custom orthotics (as defined under paragraphs (1) and (2) 

13 of subsection (e)) (or both)— 

14 ‘‘(1) such benefits for prosthetics or custom 

15 orthotics (or both) under the plan (or coverage) shall 

16 be provided under terms and conditions that are no 

17 less favorable than the terms and conditions applica18 ble to substantially all medical and surgical benefits 

19 provided under the plan (or coverage); 

20 ‘‘(2) such benefits for prosthetics or custom 

21 orthotics (or both) under the plan (or coverage) may 

22 not be subject to separate financial requirements (as 

23 defined in subsection (e)(2)) that are applicable only 

24 with respect to such benefits, and any financial re25 quirements applicable to such benefits shall be no 

26 more restrictive than the financial requirements apVerDate Nov 24 2008 02:21 Apr 20, 2010 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3223.IS S3223

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1 plicable to substantially all medical and surgical ben2 efits provided under the plan (or coverage); and 

3 ‘‘(3) any treatment limitations (as defined in 

4 subsection (e)(3)) applicable to such benefits for 

5 prosthetics or custom orthotics (or both) under the 

6 plan (or coverage) may not be more restrictive than 

7 the treatment limitations applicable to substantially 

8 all medical and surgical benefits provided under the 

9 plan (or coverage). 

10 ‘‘(b) IN NETWORK AND OUT-OF-NETWORK STAND11 ARDS.— 

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

13 health plan (or health insurance coverage offered in 

14 connection with a group health plan) that provides 

15 medical or surgical benefits and also provides bene16 fits for prosthetics or custom orthotics (or both), 

17 and that provides both in-network benefits for pros18 thetics and custom orthotics and out-of-network ben19 efits for prosthetics and custom orthotics, the re20 quirements of this section shall apply separately with 

21 respect to benefits under the plan (or coverage) on 

22 an in-network basis and benefits provided under the 

23 plan (or coverage) on an out-of-network basis. 

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

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


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1 health plan (or health insurance coverage offered in 

2 connection with a group health plan) eliminate an 

3 out-of-network provider option from such plan (or 

4 coverage) pursuant to the terms of the plan (or cov5 erage). 

6 ‘‘(c) PATIENT ACCESS.—A group health plan (or 

7 health insurance coverage offered in connection with a 

8 group health plan) described in subsection (a) that does 

9 not provide coverage for benefits outside of a network shall 

10 ensure that such provider network is adequate to ensure 

11 enrollee access to prosthetic and custom orthotic devices 

12 and related services provided by appropriately credentialed 

13 practitioners and accredited suppliers of prosthetics and 

14 custom orthotics. 

15 ‘‘(d) ADDITIONAL REQUIREMENTS.— 

16 ‘‘(1) PRIOR AUTHORIZATION.—In the case of a 

17 group health plan (or health insurance coverage of18 fered in connection with a group health plan) that 

19 requires, as a condition of coverage or payment for 

20 prosthetics or custom orthotics (or both) under the 

21 plan (or coverage), prior authorization, such prior 

22 authorization must be required in the same manner 

23 as prior authorization is required by the plan (or 

24 coverage) as a condition of coverage or payment for 


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1 all similar medical and surgical benefits provided 

2 under the plan (or coverage). 

3 ‘‘(2) LIMITATION ON MANDATED BENEFITS.— 

4 Coverage for required benefits for prosthetics and 

5 custom orthotics under this section may be limited 

6 to coverage of the most appropriate device or compo7 nent model that meets the medical requirements of 

8 the patient, as determined by the treating physician 

9 of the patient involved. 

10 ‘‘(3) COVERAGE FOR REPAIR OR REPLACE11 MENT.—Benefits for prosthetics and custom 

12 orthotics required under this section shall include 

13 coverage for the repair or replacement of prosthetics 

14 and custom orthotics, if the repair or replacement is 

15 due to normal wear and tear, irreparable damage, a 

16 change in the condition of the patient as determined 

17 by the treating physician, or otherwise determined 

18 appropriate by the treating physician of the patient 

19 involved. 

20 ‘‘(4) ANNUAL OR LIFETIME DOLLAR LIMITA21 TIONS.—A group health plan (or health insurance 

22 coverage offered in connection with a group health 

23 plan) shall not impose any annual or lifetime dollar 

24 limitation on benefits for prosthetics and custom 

25 orthotics required to be covered under this section 


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1 unless such limitation applies in the aggregate to all 

2 medical and surgical benefits provided under the 

3 plan (or coverage) and benefits for prosthetics and 

4 custom orthotics. 

5 ‘‘(e) DEFINITIONS.—In this section: 

6 ‘‘(1) PROSTHETICS.—The term ‘prosthetics’ 

7 means those devices and components that may be 

8 used to replace, in whole or in part, an arm or leg, 

9 as well as the services required to do so and includes 

10 external breast prostheses incident to mastectomy 

11 resulting from breast cancer. 

12 ‘‘(2) CUSTOM ORTHOTICS.—The term ‘custom 

13 orthotics’ means the following: 

14 ‘‘(A) Custom-fabricated orthotics and re15 lated services, which include custom-fabricated 

16 devices that are individually made for a specific 

17 patient, as well as all services and supplies that 

18 are medically necessary for the effective use of 

19 the orthotic device and instructing the patient 

20 in the use of the device. No other patient would 

21 be able to use this particular orthosis. A cus22 tom-fabricated orthosis is a device which is fab23 ricated based on clinically derived and rectified 

24 castings, tracings, measurements, or other im25 ages (such as x-rays) of the body part. The fabVerDate Nov 24 2008 02:21 Apr 20, 2010 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3223.IS S3223

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1 rication may involve using calculations, tem2 plates and component parts. This process re3 quires the use of basic materials and involves 

4 substantial work such as vacuum forming, cut5 ting, bending, molding, sewing, drilling and fin6 ishing prior to fitting on the patient. Custom7 fabricated devices may be furnished only by an 

8 appropriately credentialed (certified or licensed) 

9 practitioner and accredited supplier in Orthotics 

10 or Prosthetics. Such devices and related serv11 ices are represented by the set of L-codes under 

12 the Healthcare Common Procedure Coding Sys13 tem describing this care listed on the date of 

14 enactment of this section in Centers for Medi15 care & Medicaid Services Transmittal 656. 

16 ‘‘(B) Custom-fitted high orthotics and re17 lated services, which include prefabricated de18 vices that are manufactured with no specific pa19 tient in mind, but that are appropriately sized, 

20 adapted, modified, and configured (with the re21 quired tools and equipment) to a specific pa22 tient in accordance with a prescription, and 

23 which no other patient would be able to use, as 

24 well as all services and supplies that are medi25 cally necessary for the effective use of the 


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1 orthotic device and instructing the patient in 

2 the use of the device. Custom-fitted high devices 

3 may be furnished only by an appropriately 

4 credentialed (certified or licensed) practitioner 

5 and accredited supplier in Orthotics or Pros6 thetics. Such devices and related services are 

7 represented by the existing set of L-codes under 

8 the Healthcare Common Procedure Coding Sys9 tem describing this care listed on the date of 

10 enactment of this section in Centers for Medi11 care & Medicaid Services Transmittal 656. 

12 For purposes of subparagraphs (A) and (B), Centers 

13 for Medicare & Medicaid Services Transmittal 656, 

14 upon modification or reissuance by the Centers for 

15 Medicare & Medicaid Services to reflect new code ad16 ditions and coding changes for prosthetics and cus17 tom orthotics, shall be the version of the Transmittal 

18 used for purposes of such subparagraphs. 

19 ‘‘(3) FINANCIAL REQUIREMENTS.—The term 

20 ‘financial requirements’ includes deductibles, coin21 surance, co-payments, other cost sharing, and limita22 tions on the total amount that may be paid by a 

23 participant or beneficiary with respect to benefits 

24 under the plan or health insurance coverage and also 


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1 includes the application of annual and lifetime lim2 its. 

3 ‘‘(4) TREATMENT LIMITATIONS.—The term 

4 ‘treatment limitations’ includes limits on the fre5 quency of treatment, number of visits, days of cov6 erage, or other similar limits on the scope or dura7 tion of treatment.’’. 

8 (2) CLERICAL AMENDMENT.—The table of con9 tents in section 1 of the Employee Retirement In10 come Security Act of 1974 is amended by inserting 

11 after the item relating to section 714 the following: 

‘‘Sec. 715. Prosthetics and custom orthotics parity.’’. 

12 (b) PHSA.—Subpart 2 of part A of title XXVII of 

13 the Public Health Service Act (42 U.S.C. 300gg–4 et seq.) 

14 is amended by adding at the end the following: 

15 ‘‘SEC. 2708. PROSTHETICS AND CUSTOM ORTHOTICS PAR16 ITY. 

17 ‘‘(a) IN GENERAL.—In the case of a group health 

18 plan (or health insurance coverage offered in connection 

19 with a group health plan) that provides medical and sur20 gical benefits and also provides benefits for prosthetics or 

21 custom orthotics (as defined under paragraphs (1) and (2) 

22 of subsection (e)) (or both)— 

23 ‘‘(1) such benefits for prosthetics or custom 

24 orthotics (or both) under the plan (or coverage) shall 

25 be provided under terms and conditions that are no 


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1 less favorable than the terms and conditions applica2 ble to substantially all medical and surgical benefits 

3 provided under the plan (or coverage); 

4 ‘‘(2) such benefits for prosthetics or custom 

5 orthotics (or both) under the plan (or coverage) may 

6 not be subject to separate financial requirements (as 

7 defined in subsection (e)(2)) that are applicable only 

8 with respect to such benefits, and any financial re9 quirements applicable to such benefits shall be no 

10 more restrictive than the financial requirements ap11 plicable to substantially all medical and surgical ben12 efits provided under the plan (or coverage); and 

13 ‘‘(3) any treatment limitations (as defined in 

14 subsection (e)(3)) applicable to such benefits for 

15 prosthetics or custom orthotics (or both) under the 

16 plan (or coverage) may not be more restrictive than 

17 the treatment limitations applicable to substantially 

18 all medical and surgical benefits provided under the 

19 plan (or coverage). 

20 ‘‘(b) IN NETWORK AND OUT-OF-NETWORK STAND21 ARDS.— 

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

23 health plan (or health insurance coverage offered in 

24 connection with a group health plan) that provides 

25 medical and surgical benefits and also provides beneVerDate Nov 24 2008 02:53 Apr 20, 2010 Jkt 089200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S3223.IS S3223

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1 fits for prosthetics or custom orthotics (or both), 

2 and that provides both in-network and out-of-net3 work benefits for prosthetics or custom orthotics (or 

4 both), the requirements of this section shall apply 

5 separately with respect to benefits under the plan 

6 (or coverage) on an in-network basis and benefits 

7 provided under the plan (or coverage) on an out-of8 network basis. 

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

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

11 health plan (or health insurance coverage offered in 

12 connection with a group health plan) eliminate an 

13 out-of-network provider option from such plan (or 

14 coverage) pursuant to the terms of the plan (or cov15 erage). 

16 ‘‘(c) PATIENT ACCESS.—A group health plan (or 

17 health insurance coverage offered in connection with a 

18 group health plan) described in subsection (a) that does 

19 not provide coverage for benefits outside of a network shall 

20 ensure that such provider network is adequate to ensure 

21 enrollee access to prosthetic and custom orthotic devices 

22 and related services provided by appropriately credentialed 

23 practitioners and accredited suppliers of prosthetics and 

24 custom orthotics. 

25 ‘‘(d) ADDITIONAL REQUIREMENTS.— 


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1 ‘‘(1) PRIOR AUTHORIZATION.—In the case of a 

2 group health plan (or health insurance coverage of3 fered in connection with a group health plan) that 

4 requires, as a condition of coverage or payment for 

5 prosthetics or custom orthotics (or both) under the 

6 plan (or coverage), prior authorization, such prior 

7 authorization must be required in the same manner 

8 as prior authorization is required by the plan (or 

9 coverage) as a condition of coverage or payment for 

10 all similar medical and surgical benefits provided 

11 under the plan (or coverage). 

12 ‘‘(2) LIMITATION ON MANDATED BENEFITS.— 

13 Coverage for required benefits for prosthetics and 

14 custom orthotics under this section may be limited 

15 to coverage of the most appropriate device or compo16 nent model that adequately meets the medical re17 quirements of the patient, as determined by the 

18 treating physician of the patient involved. 

19 ‘‘(3) COVERAGE FOR REPAIR OR REPLACE20 MENT.—Benefits for prosthetics and custom 

21 orthotics required under this section shall include 

22 coverage for the repair or replacement of prosthetics 

23 and custom orthotics, if the repair or replacement is 

24 due to normal wear and tear, irreparable damage, a 

25 change in the condition of the patient as determined 


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1 by the treating physician, or otherwise determined 

2 appropriate by the treating physician of the patient 

3 involved. 

4 ‘‘(4) ANNUAL OR LIFETIME DOLLAR LIMITA5 TIONS.—A group health plan (or health insurance 

6 coverage offered in connection with a group health 

7 plan) shall not impose any annual or lifetime dollar 

8 limitation on benefits for prosthetics and custom 

9 orthotics required to be covered under this section 

10 unless such limitation applies in the aggregate to all 

11 medical and surgical benefits provided under the 

12 plan (or coverage) and benefits for prosthetics and 

13 custom orthotics. 

14 ‘‘(e) DEFINITIONS.—In this section: 

15 ‘‘(1) PROSTHETICS.—The term ‘prosthetics’ 

16 means those devices and components that may be 

17 used to replace, in whole or in part, an arm or leg, 

18 as well as the services required to do so and includes 

19 external breast prostheses incident to mastectomy 

20 resulting from breast cancer. 

21 ‘‘(2) CUSTOM ORTHOTICS.—The term ‘custom 

22 orthotics’ means the following: 

23 ‘‘(A) Custom-fabricated orthotics and re24 lated services, which include custom-fabricated 

25 devices that are individually made for a specific 


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1 patient, as well as all services and supplies that 

2 are medically necessary for the effective use of 

3 the orthotic device and instructing the patient 

4 in the use of the device. No other patient would 

5 be able to use this particular orthosis. A cus6 tom-fabricated orthosis is a device which is fab7 ricated based on clinically derived and rectified 

8 castings, tracings, measurements, or other im9 ages (such as x-rays) of the body part. The fab10 rication may involve using calculations, tem11 plates and component parts. This process re12 quires the use of basic materials and involves 

13 substantial work such as vacuum forming, cut14 ting, bending, molding, sewing, drilling and fin15 ishing prior to fitting on the patient. Custom16 fabricated devices may be furnished only by an 

17 appropriately credentialed (certified or licensed) 

18 practitioner and accredited supplier in Orthotics 

19 or Prosthetics. Such devices and related serv20 ices are represented by the set of L-codes under 

21 the Healthcare Common Procedure Coding Sys22 tem describing this care listed on the date of 

23 enactment of this section in Centers for Medi24 care & Medicaid Services Transmittal 656. 


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1 ‘‘(B) Custom-fitted high orthotics and re2 lated services, which include prefabricated de3 vices that are manufactured with no specific pa4 tient in mind, but that are appropriately sized, 

5 adapted, modified, and configured (with the re6 quired tools and equipment) to a specific pa7 tient in accordance with a prescription, and 

8 which no other patient would be able to use, as 

9 well as all services and supplies that are medi10 cally necessary for the effective use of the 

11 orthotic device and instructing the patient in 

12 the use of the device. Custom-fitted high devices 

13 may be furnished only by an appropriately 

14 credentialed (certified or licensed) practitioner 

15 and accredited supplier in Orthotics or Pros16 thetics. Such devices and related services are 

17 represented by the existing set of L-codes under 

18 the Healthcare Common Procedure Coding Sys19 tem describing this care listed on the date of 

20 enactment of this section in Centers for Medi21 care & Medicaid Services Transmittal 656. 

22 For purposes of subparagraphs (A) and (B), Centers 

23 for Medicare & Medicaid Services Transmittal 656, 

24 upon modification or reissuance by the Centers for 

25 Medicare & Medicaid Services to reflect new code adVerDate Nov 24 2008 02:21 Apr 20, 2010 Jkt 089200 PO 00000 Frm 00018 Fmt 6652 Sfmt 6201 E:\BILLS\S3223.IS S3223

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1 ditions and coding changes for prosthetics and cus2 tom orthotics, shall be the version of the Transmittal 

3 used for purposes of such subparagraphs. 

4 ‘‘(3) FINANCIAL REQUIREMENTS.—The term 

5 ‘financial requirements’ includes deductibles, coin6 surance, co-payments, other cost sharing, and limita7 tions on the total amount that may be paid by a 

8 participant or beneficiary with respect to benefits 

9 under the plan or health insurance coverage and also 

10 includes the application of annual and lifetime lim11 its. 

12 ‘‘(4) TREATMENT LIMITATIONS.—The term 

13 ‘treatment limitations’ includes limits on the fre14 quency of treatment, number of visits, days of cov15 erage, or other similar limits on the scope or dura16 tion of treatment.’’. 

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

18 this section shall apply with respect to group health plans 

19 (and health insurance coverage offered in connection with 

20 group health plans) for plan years beginning on or after 

21 the date of the enactment of this Act. 

22 SEC. 4. FEDERAL ADMINISTRATIVE RESPONSIBILITIES. 

23 (a) ASSISTANCE TO ENROLLEES.—The Secretary of 

24 Labor, in consultation with the Secretary of Health and 

25 Human Services, shall provide assistance to enrollees 


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1 under plans or coverage to which the amendment made 

2 by section 3 apply with any questions or problems with 

3 respect to compliance with the requirements of such 

4 amendment. 

5 (b) AUDITS.—The Secretary of Labor, in consulta6 tion with the Secretary of Health and Human Services, 

7 shall provide for the conduct of random audits of group 

8 health plans (and health insurance coverage offered in 

9 connection with such plans) to ensure that such plans (or 

10 coverage) are in compliance with the amendments made 

11 by section (3). 

12 (c) GAO STUDY.— 

13 (1) STUDY.—The Comptroller General of the 

14 United States shall conduct a study that evaluates 

15 the effect of the implementation of the amendments 

16 made by this Act on the cost of the health insurance 

17 coverage, on access to health insurance coverage (in18 cluding the availability of in-network providers), on 

19 the quality of health care, on benefits and coverage 

20 for prosthetics and custom orthotics on any addi21 tional cost or savings to group health plans, on State 

22 prosthetics and custom orthotics benefit laws, on the 

23 business community and the Federal Government, 

24 and on other issues as determined appropriate by 

25 the Comptroller General. 


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1 (2) REPORT.—Not later than 2 years after the 

2 date of the enactment of this Act, the Comptroller 

3 General of the United States shall prepare and sub4 mit to the appropriate committee of Congress a re5 port containing the results of the study conducted 

6 under paragraph (1). 

7 (d) REGULATIONS.—Not later than 1 year after the 

8 date of the enactment of this Act, the Secretary of Labor, 

9 in consultation with the Secretary of Health and Human 

10 Services, shall promulgate final regulations to carry out 

11 this Act and the amendments made by this Act. 

Æ 


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