(iii) the length of time in making de-
terminations on those cases;
(iv) updated information of what was
required to be submitted as a condition of
certification for the entity’s performance of
external appeal activities; and
(v) such information as may be nec-
essary to assure the independence of the
entity from the plans or issuers for which
external appeal activities are being con-
ducted.
(C) CERTIFICATION
OF
QUALIFIED
PRI-
VATE STANDARD-SETTING ORGANIZATIONS.—
(i) FOR EXTERNAL REVIEWS UNDER
GROUP HEALTH PLANS.—For purposes of
subparagraph (A)(i)(III), the Secretary of
Labor may provide for a process for certifi-
cation (and periodic recertification) of
qualified private standard-setting organiza-
tions which provide for certification of ex-
ternal review entities. Such an organization
shall only be certified if the organization
does not certify an external review entity
unless it meets standards required for cer-
tification of such an entity by such Sec-
retary under subparagraph (A)(i)(I).
(ii) FOR
EXTERNAL
REVIEWS
OF
HEALTH
INSURANCE
ISSUERS.—For pur-
poses of subparagraph (A)(ii)(II), the Sec-
retary of Health and Human Services may
provide for a process for certification (and
periodic recertification) of qualified private
standard-setting organizations which pro-
vide for certification of external review en-
tities. Such an organization shall only be
certified if the organization does not certify
an external review entity unless it meets
standards required for certification of such
an entity by such Secretary under subpara-
graph (A)(ii)(II).
(3) INDEPENDENCE REQUIREMENTS.—
(A) IN GENERAL.—A clinical peer or other
entity meets the independence requirements of
this paragraph if—
(i) the peer or entity does not have a
familial, financial, or professional relation-
ship with any related party;
(ii) any compensation received by such
peer or entity in connection with the exter-
nal review is reasonable and not contingent
on any decision rendered by the peer or en-
tity;
(iii) except as provided in paragraph
(4), the plan and the issuer have no re-
course against the peer or entity in connec-
tion with the external review; and
(iv) the peer or entity does not other-
wise have a conflict of interest with a re-
lated party as determined under any regu-
lations which the Secretary may prescribe.
(B) RELATED
PARTY.—For purposes of
this paragraph, the term ‘‘related party’’
means—
(i) with respect to—
(I) a group health plan or health
insurance coverage offered in connec-
tion with such a plan, the plan or the
health insurance issuer offering such
coverage, or
(II) individual health insurance
coverage, the health insurance issuer
offering such coverage,
or any plan sponsor, fiduciary, officer, di-
rector, or management employee of such
plan or issuer;
(ii) the health care professional that
provided the health care involved in the
coverage decision;
(iii) the institution at which the health
care involved in the coverage decision is
provided;
(iv) the manufacturer of any drug or
other item that was included in the health
care involved in the coverage decision; or
(v) any other party determined under
any regulations which the Secretary may
prescribe to have a substantial interest in
the coverage decision.
(4) LIMITATION
ON
LIABILITY
OF
REVIEW-
ERS.—No qualified external appeal entity having a
contract with a plan or issuer under this part and
no person who is employed by any such entity or
who furnishes professional services to such entity,
shall be held by reason of the performance of any
duty, function, or activity required or authorized
pursuant to this section, to have violated any crimi-
nal law, or to be civilly liable under any law of the
United States or of any State (or political subdivi-
sion thereof) if due care was exercised in the per-
formance of such duty, function, or activity and
there was no actual malice or gross misconduct in
the performance of such duty, function, or activity.
(d) EXTERNAL APPEAL DETERMINATION BINDING
ON PLAN.—The determination by an external appeal enti-
ty under this section is binding on the plan and issuer
involved in the determination.
(e) PENALTIES AGAINST AUTHORIZED OFFICIALS
FOR REFUSING TO AUTHORIZE THE DETERMINATION OF
AN EXTERNAL REVIEW ENTITY.—
(1) MONETARY
PENALTIES.—In any case in
which the determination of an external review entity
is not followed by a group health plan, or by a
health insurance issuer offering health insurance
coverage, any person who, acting in the capacity of
authorizing the benefit, causes such refusal may, in
the discretion in a court of competent jurisdiction,
be liable to an aggrieved participant, beneficiary, or
enrollee for a civil penalty in an amount of up to
$1,000 a day from the date on which the determina-
tion was transmitted to the plan or issuer by the ex-
ternal review entity until the date the refusal to pro-
vide the benefit is corrected.
(2) CEASE AND DESIST ORDER AND ORDER OF
ATTORNEY’S
FEES.—In any action described in
paragraph (1) brought by a participant, beneficiary,
or enrollee with respect to a group health plan, or
a health insurance issuer offering health insurance
coverage, in which a plaintiff alleges that a person
referred to in such paragraph has taken an action
resulting in a refusal of a benefit determined by an
external appeal entity in violation of such terms of
the plan, coverage, or this subtitle, or has failed to
take an action for which such person is responsible
under the plan, coverage, or this title and which is
necessary under the plan or coverage for authorizing
a benefit, the court shall cause to be served on the
defendant an order requiring the defendant—
(A) to cease and desist from the alleged
action or failure to act; and
(B) to pay to the plaintiff a reasonable at-
torney’s fee and other reasonable costs relating
to the prosecution of the action on the charges
on which the plaintiff prevails.
(3) ADDITIONAL CIVIL PENALTIES.—
(A) IN GENERAL.—In addition to any pen-
alty imposed under paragraph (1) or (2), the
appropriate Secretary may assess a civil penalty
against a person acting in the capacity of au-
thorizing a benefit determined by an external
review entity for one or more group health
plans, or health insurance issuers offering
health insurance coverage, for—
(i) any pattern or practice of repeated
refusal to authorize a benefit determined
by an external appeal entity in violation of
the terms of such a plan, coverage, or this
title; or
(ii) any pattern or practice of re-
peated violations of the requirements of
this section with respect to such plan or
plans or coverage.
(B) STANDARD OF PROOF AND AMOUNT OF
PENALTY.—Such penalty shall be payable only
upon proof by clear and convincing evidence of
such pattern or practice and shall be in an
amount not to exceed the lesser of—
(i) 25 percent of the aggregate value
of benefits shown by the appropriate Sec-
retary to have not been provided, or unlaw-
fully delayed, in violation of this section
under such pattern or practice, or
(ii) $500,000.
(4) REMOVAL
AND
DISQUALIFICATION.—Any
person acting in the capacity of authorizing benefits
who has engaged in any such pattern or practice de-
scribed in paragraph (3)(A) with respect to a plan
or coverage, upon the petition of the appropriate
Secretary, may be removed by the court from such
position, and from any other involvement, with re-
spect to such a plan or coverage, and may be pre-
cluded from returning to any such position or in-
volvement for a period determined by the court.
(f) PROTECTION
OF LEGAL RIGHTS.—Nothing in
this subtitle shall be construed as altering or eliminating
any cause of action or legal rights or remedies of partici-
pants, beneficiaries, enrollees, and others under State or
Federal law (including sections 502 and 503 of the Em-
ployee Retirement Income Security Act of 1974), includ-
ing the right to file judicial actions to enforce actions.
SEC. 104. ESTABLISHMENT OF A GRIEVANCE PROCESS.
(a) ESTABLISHMENT OF GRIEVANCE SYSTEM.—
(1) IN GENERAL.—A group health plan, and a
health insurance issuer in connection with the provi-
sion of health insurance coverage, shall establish and
maintain a system to provide for the presentation
and resolution of oral and written grievances
brought by individuals who are participants, bene-
ficiaries, or enrollees, or health care providers or
other individuals acting on behalf of an individual
and with the individual’s consent or without such
consent if the individual is medically unable to pro-
vide such consent, regarding any aspect of the plan’s
or issuer’s services.
(2) GRIEVANCE DEFINED.—In this section, the
term ‘‘grievance’’ means any question, complaint, or
concern brought by a participant, beneficiary or en-
rollee that is not a claim for benefits (as defined in
section 101(f)(1)).
(b) GRIEVANCE SYSTEM.—Such system shall include
the following components with respect to individuals who
are participants, beneficiaries, or enrollees:
(1) Written notification to all such individuals
and providers of the telephone numbers and business
addresses of the plan or issuer personnel responsible
for resolution of grievances and appeals.
(2) A system to record and document, over a
period of at least 3 previous years, all grievances
and appeals made and their status.
(3) A process providing for timely processing
and resolution of grievances.
(4) Procedures for follow-up action, including
the methods to inform the person making the griev-
ance of the resolution of the grievance.
Grievances are not subject to appeal under the previous
provisions of this subtitle.
Subtitle B—Access to Care
SEC. 111. CONSUMER CHOICE OPTION.
(a) IN GENERAL.—If a health insurance issuer offers
to enrollees health insurance coverage in connection with
a group health plan which provides for coverage of services
only if such services are furnished through health care
professionals and providers who are members of a network
of health care professionals and providers who have en-
tered into a contract with the issuer to provide such serv-
ices, the issuer shall also offer to such enrollees (at the
time of enrollment and during an annual open season as
provided under subsection (c)) the option of health insur-
ance coverage which provides for coverage of such services
which are not furnished through health care professionals
and providers who are members of such a network unless
enrollees are offered such non-network coverage through
another group health plan or through another health in-
surance issuer in the group market.
(b) ADDITIONAL COSTS.—The amount of any addi-
tional premium charged by the health insurance issuer for
the additional cost of the creation and maintenance of the
option described in subsection (a) and the amount of any
additional cost sharing imposed under such option shall
be borne by the enrollee unless it is paid by the health
plan sponsor through agreement with the health insurance
issuer.
(c) OPEN SEASON.—An enrollee may change to the
offering provided under this section only during a time pe-
riod determined by the health insurance issuer. Such time
period shall occur at least annually.
SEC. 112. CHOICE OF HEALTH CARE PROFESSIONAL.
(a) PRIMARY CARE.—If a group health plan, or a
health insurance issuer that offers health insurance cov-
erage, requires or provides for designation by a partici-
pant, beneficiary, or enrollee of a participating primary
care provider, then the plan or issuer shall permit each
participant, beneficiary, and enrollee to designate any par-
ticipating primary care provider who is available to accept
such individual.
(b) SPECIALISTS.—
(1) IN GENERAL.—Subject to paragraph (2), a
group health plan and a health insurance issuer that
offers health insurance coverage shall permit each
participant, beneficiary, or enrollee to receive medi-
cally necessary or appropriate specialty care, pursu-
ant to appropriate referral procedures, from any
qualified participating health care professional who
is available to accept such individual for such care.
(2) LIMITATION.—Paragraph (1) shall not
apply to specialty care if the plan or issuer clearly
informs participants, beneficiaries, and enrollees of
the limitations on choice of participating health care
professionals with respect to such care.
SEC. 113. ACCESS TO EMERGENCY CARE.
(a) COVERAGE OF EMERGENCY SERVICES.—
(1) IN GENERAL.—If a group health plan, or
health insurance coverage offered by a health insur-
ance issuer, provides any benefits with respect to
services in an emergency department of a hospital,
the plan or issuer shall cover emergency services (as
defined in paragraph (2)(B))—
(A) without the need for any prior author-
ization determination;
(B) whether or not the health care pro-
vider furnishing such services is a participating
provider with respect to such services;
(C) in a manner so that, if such services
are provided to a participant, beneficiary, or
enrollee—