(D) have been transferred indiscriminately 
into improperly or inadequately managed health 
maintenance organizations or other managed 
care entities, resulting in the worsening rather 
than improvement of prior medical conditions; 
and 
(E) in many instances, have failed to ob-
tain adequate relief in the courts due to highly 
restrictive judicial interpretations which are in-
consistent with ERISA’s underlying protective 
purposes. 
(3) The crisis in retiree healthcare generated by 
the plan sponsor practice of post-retirement can-
cellations or reductions of previously promised 
earned retiree health benefits has led to a wide-
spread loss of confidence in the integrity of ERISA- 
regulated group health plans and the ability of 
ERISA itself to adequately protect retiree health 
benefits. 
(4) A strong and dependable private sector re-
tiree health system is a necessary component to the 
essential health of our Nation’s senior citizens. 
(b) PURPOSES.— 
(1) IN GENERAL.—The purposes of this Act are 
to ensure that the reasonable health benefit expecta-
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tions of retirees from ERISA-regulated group health 
plans are fulfilled, to minimize the incidence of pro-
longed legal disputes arising out of the post-retire-
ment cancellation or reduction of earned retiree 
health benefits from such plans, and to prevent fur-
ther adverse effects on retiree health arising from 
such post-retirement changes. 
(2) FUTURE SAFEGUARDS AND ENFORCEABLE 
OBLIGATIONS.—To carry out the purposes described 
in paragraph (1): 
(A) The provisions of this Act safeguard 
retired participants of group health plans sub-
ject to ERISA from loss or reduction of their 
health benefits from such plans by barring plan 
sponsors from canceling or reducing such bene-
fits after the dates such participants retire and 
when they no longer are able to absorb such 
losses or reductions without experiencing ad-
verse effects on their health or finances. 
(B) The provisions of this Act also estab-
lish an enforceable obligation on the part of 
sponsors of such group health plans to restore 
health benefits previously taken away from re-
tired participants of such plans to the extent 
such benefits were cancelled or altered after the 
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dates such participants retired. The obligation 
is limited to restoring healthcare benefits only 
back to specified levels, and the obligation does 
not apply if the plan sponsor would sustain sub-
stantial business hardship by restoring such 
benefits. 
SEC. 3. RETIREE HEALTH BENEFIT PROTECTIONS IN 
GROUP HEALTH PLANS. 
(a) IN GENERAL.—Subtitle B of title I of the Em-
ployee Retirement Income Security Act of 1974 is amend-
ed by adding at the end the following new part: 
‘‘PART 8—EMERGENCY RETIREE HEALTH 
BENEFIT PROTECTIONS 
‘‘SEC. 801. PROHIBITION AGAINST POST-RETIREMENT RE-
DUCTIONS OF RETIREE HEALTH BENEFITS 
BY GROUP HEALTH PLANS. 
‘‘(a) IN GENERAL.—Notwithstanding that a group 
health plan described in subsection (b) may contain a pro-
vision reserving the general power to amend or terminate 
the plan or a provision specifically authorizing the plan 
to make post-retirement reductions in retiree health bene-
fits, the benefits provided to a retired participant or his 
or her beneficiary under the terms of the plan may not 
be reduced, whether through amendment or otherwise, if 
such reduction of benefits occurs after the date the partici-
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pant has retired for purposes of the plan and reduces ben-
efits that were provided to the participant, or his or her 
beneficiary, as of the date the participant retired. Any 
group health plan provision which is purported to author-
ize the reduction of benefits in a manner inconsistent with 
the preceding sentence shall be void as against public pol-
icy. 
‘‘(b) GROUP HEALTH PLAN.—For purposes of this 
Act, the term ‘group health plan’ has the same meaning 
as in section 607(1). 
‘‘(c) PROHIBITED REDUCTION OF BENEFITS.—For 
purposes of this part, any reference to a reduction of bene-
fits shall be construed to be a reference to any amendment 
to a group health plan, or to any other action, which has 
the effect of— 
‘‘(1) canceling, decreasing, or limiting the 
amount, type, or form of any benefit or option pro-
vided prior to the amendment or action; 
‘‘(2) imposing or increasing out-of-pocket costs 
that a retired participant, or his or her beneficiary, 
must pay in order for benefits that were provided 
under the plan to the participant or beneficiary prior 
to the amendment or action to be provided to the 
participant or beneficiary after the amendment or 
action; or 
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‘‘(3) modifying the manner by which medical 
services are delivered under the plan so that after 
the amendment or action a retired participant, or 
his or her beneficiary, has less ready access to the 
delivery of any such medical services than the partic-
ipant or beneficiary had prior to the amendment or 
action. 
‘‘(d) TREATMENT OF PLAN TERMINATION.— 
‘‘(1) IN GENERAL.—Subject to paragraph (2), a 
termination of a group health plan shall be treated 
as a reduction in benefits prohibited under sub-
section (a) if, after the termination, the plan sponsor 
of the terminated plan fails to continue to provide 
to the participants who retired prior to the termi-
nation and to their beneficiaries the same retiree 
health benefits that were provided prior to the termi-
nation. 
‘‘(2) WAIVER.—Paragraph (1) shall not apply 
in the case of the termination of a group health plan 
if the Secretary issues a waiver under this para-
graph in connection with such termination. The Sec-
retary shall issue such a waiver if and only if the 
plan sponsor demonstrates to the satisfaction of the 
Secretary, in accordance with regulations prescribed 
by the Secretary, that such plan sponsor will be un-
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able to continue in business unless such a waiver is 
issued. 
‘‘SEC. 802. ADOPTION BY GROUP HEALTH PLANS OF PROVI-
SION BARRING POST-RETIREMENT REDUC-
TIONS IN RETIREE HEALTH BENEFITS. 
‘‘Each group health plan which provides, as of the 
date of a participant’s retirement under the plan, benefits 
after such date with respect to such participant or his or 
her beneficiaries shall contain a provision which expressly 
bars any reduction in such benefits after such date, either 
under the terms of the plan or by any fiduciary of the 
plan. 
‘‘SEC. 803. RESTORATION BY GROUP HEALTH PLANS OF 
BENEFITS REDUCED AFTER RETIREMENT. 
‘‘(a) IN GENERAL.—The plan sponsor of each group 
health plan shall provide, in accordance with this section, 
benefit restoration under this section to each retired par-
ticipant that meets the following requirements: 
‘‘(1) The retired participant is entitled to ben-
efit coverage under the plan as of the date of the en-
actment of the Earned Retiree Healthcare Benefits 
Protection Act of 2011. 
‘‘(2) The participant retired under the plan be-
fore the date of the enactment of such Act, and a 
reduction in benefits, with respect to any benefit or 
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option provided to the retired participant under the 
plan as of the date the participant retired, took ef-
fect after the participant’s date of retirement and 
before the date of the enactment of such Act. 
‘‘(3) The retired participant has elected to re-
store benefits under the plan within the restoration 
period prescribed pursuant to subsection (b) and in 
accordance with such procedures as may be estab-
lished under the plan pursuant to regulations of the 
Secretary. 
‘‘(b) RESTORATION PERIOD.—For purposes of this 
section, the term ‘restoration period’ means a period which 
shall be prescribed by the Secretary and which— 
‘‘(1) begins not later than 1 year after the date 
of the enactment of the Earned Retiree Healthcare 
Benefits Protection Act of 2011; 
‘‘(2) ends before the end of the 2-year period 
beginning with such date, or such longer period as 
may result from a suspension of such 2-year period 
by the Secretary pursuant to section 804(g); and 
‘‘(3) is of no less than 60 days duration. 
‘‘(c) APPLICABLE STANDARDS FOR RESTORATION OF 
BENEFITS.— 
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‘‘(1) IN GENERAL.—For purposes of this sec-
tion, reduced benefits shall be deemed restored 
under this section— 
‘‘(A) in the case of a participant who re-
tired under the plan before the plan year begin-
ning with or during 1991, if the benefits which 
were subjected to reduction are restored to the 
level of such benefits which was in effect for the 
plan year beginning with or during 1991, and 
‘‘(B) in the case of a participant who re-
tired under the plan after the plan year begin-
ning with or during 1990 and before the date 
of the enactment of the Earned Retiree 
Healthcare Benefits Protection Act of 2011, if 
the benefits which were subjected to reduction 
are restored to the level of such benefits which 
was in effect immediately prior to the reduction. 
‘‘(2) LEVEL OF BENEFITS.—For purposes of 
paragraph (1), restoration of benefits to a level re-
quired under paragraph (1) occurs if— 
‘‘(A) any cancellation, decrease, or limita-
tion with respect to the amount, type, or form 
of any benefit or option which resulted in the 
reduction in benefits is rescinded or lessened so 
as to result in the amount, type, and form of 
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benefits in effect for the plan year beginning 
with or during 1991 (in the case of a partici-
pant described in paragraph (1)(A)) or as of 
immediately prior to the reduction (in the case 
of a participant described in paragraph (1)(B)); 
‘‘(B) any imposition or increase in out-of- 
pocket costs that the participant, or his or her 
beneficiary, must pay which resulted in the re-
duction in benefits is rescinded or lessened so 
as to result in the level of out-of-pocket costs in 
effect for the plan year beginning with or dur-
ing 1991 (in the case of a participant described 
in paragraph (1)(A)) or as of immediately prior 
to the reduction (in the case of a participant 
described in paragraph (1)(B)); and 
‘‘(C) any modification in the manner by 
which medical services are delivered under the 
plan which resulted in the reduction in benefits 
is rescinded or amended so as to result in a 
manner by which medical services are delivered 
under the plan which is substantially equivalent 
to the manner by which medical services are de-
livered in effect for the plan year beginning 
with or during 1991 (in the case of a partici-
pant described in paragraph (1)(A)) or as of 
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immediately prior to the reduction (in the case 
of a participant described in paragraph (1)(B)). 
‘‘(d) EXCEPTION FOR CERTAIN PLANS.—In accord-
ance with regulations prescribed by the Secretary, in the 
case of any group health plan which has less than 100 
participants as of the date of the enactment of the Earned 
Retiree Healthcare Benefits Protection Act of 2011, sub-
section (a) shall apply to such plan only if, at any time 
during the period described in subsection (b)(2) (including 
any extension thereof), such plan has more than 100 par-
ticipants. 
‘‘(e) NOTICE REQUIREMENTS CONCERNING RES-
TORATION OF BENEFITS.—In accordance with such regu-
lations as may be prescribed by the Secretary, the plan 
administrator of each group health plan subject to the re-
quirements of subsection (a) shall, within 30 days prior 
to the commencement of the plan’s restoration period, pro-
vide written notice to each retired participant of the plan 
who meets the requirements of subsection (a) of the fol-
lowing: 
‘‘(1) A description of all benefits the retired 
participant is entitled to have restored. 
‘‘(2) The administrative procedure established 
under the plan which may be used to submit a claim 
for the restoration of any benefits. 
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‘‘(3) An itemization of the value of each benefit 
the retired participant is entitled to have restored, 
as determined in accordance with the regulations of 
the Secretary, and the total value of all such bene-
fits. 
‘‘(4) A description of any post-retirement in-
creases in retiree health benefits the retired partici-
pant received which the plan sponsor could rescind 
if the retired participant asserts a claim for the res-
toration of benefits. 
‘‘(5) An itemization of the value of each retiree 
health benefit that the plan sponsor could rescind, 
as determined in accordance with the regulations of 
the Secretary, and the total value of all such bene-
fits. 
‘‘(6) If the plan sponsor has filed an application 
for a substantial business hardship exemption under 
section 804, the date on which such application was 
filed, the date on which notice of such application 
was given to retired participants entitled to submit 
a claim for the restoration of benefits, and the sta-
tus of such application as of the date of the notice 
sent pursuant to this subsection. 
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‘‘(7) Such other information in such form and 
detail as may be prescribed by the Secretary to carry 
out the purposes of this part. 
‘‘(f) DEADLINE FOR RESTORATION OF BENEFITS.— 
All benefits required to be restored under this section shall 
be restored before the end of the 2-year period beginning 
with the date of the enactment of the Earned Retiree 
Healthcare Benefits Protection Act of 2011, subject to 
any suspension of such period under section 804(g). 
‘‘SEC. 804. EXEMPTION FROM RESTORATION OF BENEFITS 
REQUIREMENTS. 
‘‘(a) APPLICATION
FOR
EXEMPTION.—Any plan 
sponsor of a group health plan that would sustain substan-
tial business hardship if required to fulfill, in whole or in 
part, the restoration of benefits requirements contained in 
section 803, may file an application for an exemption with 
the Secretary from any or all of such requirements. 
‘‘(b) AUTHORITY FOR WAIVER OR VARIANCE.—In re-
sponse to an application filed by a plan sponsor pursuant 
to subsection (a), the Secretary may waive or vary the re-
quirements of section 803 with respect to any or all of 
such requirements, including postponing for reasonable 
periods of time the obligation of the plan sponsor to re-
store reduced benefits, if the Secretary finds that compli-
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ance by the plan sponsor with the requirements of section 
803 would— 
‘‘(1) be adverse to the interests of plan partici-
pants in the aggregate; 
‘‘(2) not be administratively feasible; and 
‘‘(3) cause substantial business hardship to the 
plan sponsor. 
‘‘(c) FACTORS TAKEN INTO ACCOUNT.—For pur-
poses of this section, the factors to be taken into account 
in determining substantial business hardship shall include 
(but shall not be limited to) whether— 
‘‘(1) the plan sponsor is operating at an eco-
nomic loss; 
‘‘(2) compliance with the restoration of benefits 
requirements would necessitate substantial future re-
ductions in health benefits provided to participants 
under the plan or cause a substantial decline in em-
ployment with the plan sponsor; and 
‘‘(3) it is reasonable to expect that the plan will 
be continued only if a waiver or appropriate variance 
is granted. 
‘‘(d) REQUIREMENT OF SATISFACTORY EVIDENCE.— 
‘‘(1) IN GENERAL.—The Secretary shall, before 
granting a waiver or variance under this section, re-
quire each applicant to provide evidence satisfactory 
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to the Secretary that the applicant has provided 
timely written notice of the filing of an application 
for such waiver or variance to each retired partici-
pant entitled to submit a claim for the restoration 
of benefits under the applicant’s plan. 
‘‘(2) TIMELINESS.—For purposes of paragraph 
(1), a written notice shall be considered timely if it 
is provided not later than 60 days prior to the date 
the plan sponsor files an application for a waiver or 
variance under this section. 
‘‘(3) INFORMATION REQUIRED.—The notice re-
ferred to in paragraph (1) shall include information 
with respect to the specific relief that will be sought 
by the plan sponsor’s application, the period of time 
for which relief is sought, and such other relevant 
information as the Secretary may prescribe. 
‘‘(e) PARTICIPATION IN PROCEEDINGS BY RETIRED 
PLAN PARTICIPANTS.—Each retired participant entitled 
to submit a claim for the restoration of benefits within 
the meaning of this section shall be provided a reasonable 
opportunity to submit comments or otherwise participate 
in any proceeding established by the Secretary to deter-
mine whether to grant or deny an application for a waiver 
or variance filed by the retired participant’s plan sponsor. 
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‘‘(f) EXCEPTIONS FOR CERTAIN APPLICATIONS.—In 
any case in which the plan sponsor of the group health 
plan also maintains a pension plan which provides pension 
benefits with respect to any retired participant entitled to 
submit a claim for the restoration of benefits within the 
meaning of this section, the Secretary may not grant any 
application for a waiver or variance purporting to satisfy 
the requirements of subsection (b) if the requirements of 
paragraph (1) or (2) of this subsection are met. 
‘‘(1) FAILURE TO TRANSFER EXCESS PENSION 
ASSETS.—The requirements of this paragraph are 
met if— 
‘‘(A) within the 5-year period preceding 
the date of the plan sponsor’s application for 
the waiver or variance, the plan sponsor could 
have transferred excess assets of such pension 
plan to a health benefits account in accordance 
with section 420 of the Internal Revenue Code 
of 1986 (as in effect on the date of the enact-
ment of the Tax Relief Extension Act of 1999) 
but did not do so; and 
‘‘(B) such health benefits account forms a 
part of the group health plan with respect to 
which the plan sponsor is submitting the appli-
cation. 
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‘‘(2) NO
AD
HOC
COLAS
PROVIDED
UNDER 
WELL-FUNDED PENSION PLAN PROVIDING FOR SUCH 
COLAS.— 
‘‘(A) IN GENERAL.—The requirements of 
this paragraph are met if— 
‘‘(i)(I) no employer contributions were 
made to such pension plan during any of 
the 5 plan years preceding the date of the 
application for the waiver or variance, and 
‘‘(II) despite such lack of employer 
contributions, the minimum funding stand-
ard under section 302 of this Act and sec-
tion 412 of the Internal Revenue Code of 
1986 was satisfied with respect to such 
pension plan for each of such 5 plan years 
and the average funded ratio of the plan 
for such 5 plan years was greater than 120 
percent; and 
‘‘(ii)(I) the pension plan provided for 
ad hoc cost-of-living adjustments in bene-
fits throughout such 5 plan years, and 
‘‘(II) no such ad hoc cost-of-living ad-
justment in benefits was provided under 
such pension plan during such 5 plan 
years. 
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‘‘(B) FUNDED
RATIO.—For purposes of 
subparagraph (A)(i)(II), the funded ratio of a 
pension plan for a plan year is the ratio, ex-
pressed as a percentage, of— 
‘‘(i) the assets of the plan as of the 
end of such plan year, to 
‘‘(ii) the liabilities of the plan as of 
the end of such plan year. 
‘‘(g) RUNNING OF 2-YEAR DEADLINE PERIOD SUS-
PENDED.—The submission of an application for a waiver 
or variance pursuant to this section during the 2-year pe-
riod referred to in section 803(f) shall suspend the run-
ning of such period. If determined appropriate by the Sec-
retary, the Secretary may direct that the running of such 
period be resumed upon the final conclusion of proceedings 
to determine whether an application should be granted or 
denied. 
‘‘SEC. 805. EFFECT ON OTHER CLAIMS. 
‘‘(a) OTHER CLAIMS UNAFFECTED.—Nothing in this 
part shall be construed to alter, impair, or eliminate any 
claim for retiree health benefits based on conduct alleged 
to violate the terms of a group health plan, any provision 
of this Act (other than this part), or both, regardless of 
whether such conduct occurred prior to, on, or after the 
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date of the enactment of the Earned Retiree Healthcare 
Benefits Protection Act of 2011. 
‘‘(b) OTHER CAUSES
OF ACTION NOT AUTHOR-
IZED.—Nothing contained in this part shall be construed 
to authorize any action for recovery of retiree health bene-
fits unless the conduct giving rise to the claim for recovery 
is alleged to violate the provisions of this part. 
‘‘SEC. 806. REGULATIONS. 
‘‘The Secretary may promulgate such regulations as 
may be necessary to carry out the provisions of this part. 
The Secretary may promulgate any interim final rules as 
the Secretary deems are appropriate to carry out this 
part.’’. 
(b) CIVIL PENALTY.—Section 502(c) of the Em-
ployee Retirement Income Security Act of 1974 (29 
U.S.C. 1132(c)) is amended— 
(1) by redesignating the second paragraph (10) 
(relating to consultation between the Secretary of 
Labor and the Secretary of Health and Human 
Services) as paragraph (12); and 
(2) by inserting after the first paragraph (10) 
the following new paragraph: 
‘‘(11) The Secretary may assess any person a civil 
penalty of not more than $20,000 with respect to each 
failure by such person to meet the requirements of section 
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801, 802, or 803 with respect to each participant or bene-
ficiary aggrieved by such failure.’’. 
(c) CONFORMING AMENDMENT.—The table of con-
tents in section 1 of such Act is amended by inserting 
after the item relating to section 734 the following new 
items: 
‘‘PART 8—EMERGENCY RETIREE HEALTH BENEFIT PROTECTIONS 
‘‘Sec. 801. Prohibition against post-retirement reductions of retiree health ben-
efits by group health plans. 
‘‘Sec. 802. Adoption by group health plans of provision barring post-retirement 
reductions in retiree health benefits. 
‘‘Sec. 803. Restoration by group health plans of benefits reduced after retire-
ment. 
‘‘Sec. 804. Exemption from restoration of benefits requirements. 
‘‘Sec. 805. Effect on other claims. 
‘‘Sec. 806. Regulations.’’. 
SEC. 4. EFFECTIVE DATE. 
The amendments made by this Act shall take effect 
on the date of the enactment of this Act, except that sec-
tion 802 of the Employee Retirement Income Security Act 
of 1974 (as added by section 3 of this Act) shall apply 
with respect to plan years beginning after 180 days after 
the date of the enactment of this Act. Compliance with 
the requirements of part 8 of subtitle B of title I of the 
Employee Retirement Income Security Act of 1974 with 
respect to a group health plan shall not be treated as a 
failure to comply with the terms of such plan. 
Æ 
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