tracts or financial arrangements between a group health
plan or health insurance issuer and any provider.
SEC. 122. PROTECTION OF PATIENT CONFIDENTIALITY.
Insofar as a group health plan, or a health insurance
issuer that offers health insurance coverage, maintains
medical records or other health information regarding par-
ticipants, beneficiaries, and enrollees, the plan or issuer
shall establish procedures—
(1) to safeguard the privacy of any individually
identifiable enrollee information;
(2) to maintain such records and information in
a manner that is accurate and timely, and
(3) to assure timely access of such individuals
to such records and information.
SEC. 123. HEALTH INSURANCE OMBUDSMEN.
(a) IN GENERAL.—Each State that obtains a grant
under subsection (c) shall provide for creation and oper-
ation of a Health Insurance Ombudsman through a con-
tract with a not-for-profit organization that operates inde-
pendent of group health plans and health insurance
issuers. Such Ombudsman shall be responsible for at least
the following:
(1) To assist consumers in the State in choos-
ing among health insurance coverage or among cov-
erage options offered within group health plans.
(2) To provide counseling and assistance to en-
rollees dissatisfied with their treatment by health in-
surance issuers and group health plans in regard to
such coverage or plans and with respect to griev-
ances and appeals regarding determinations under
such coverage or plans.
(b) FEDERAL ROLE.—In the case of any State that
does not provide for such an Ombudsman under sub-
section (a), the Secretary shall provide for the creation
and operation of a Health Insurance Ombudsman through
a contract with a not-for-profit organization that operates
independent of group health plans and health insurance
issuers and that is responsible for carrying out with re-
spect to that State the functions otherwise provided under
subsection (a) by a Health Insurance Ombudsman.
(c) AUTHORIZATION
OF APPROPRIATIONS.—There
are authorized to be appropriated to the Secretary of
Health and Human Services such amounts as may be nec-
essary to provide for grants to States for contracts for
Health Insurance Ombudsmen under subsection (a) or
contracts for such Ombudsmen under subsection (b).
(d) CONSTRUCTION.—Nothing in this section shall be
construed to prevent the use of other forms of enrollee
assistance.
Subtitle D—Grievance and Appeals
Procedures
SEC. 131. ESTABLISHMENT OF 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, regarding any as-
pect of the plan’s or issuer’s services.
(2) SCOPE.—The system shall include griev-
ances regarding access to and availability of services,
quality of care, choice and accessibility of providers,
network adequacy, and compliance with the require-
ments of this title.
(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.
SEC. 132. INTERNAL APPEALS OF ADVERSE DETERMINA-
TIONS.
(a) RIGHT OF APPEAL.—
(1) IN GENERAL.—A participant or beneficiary
in a group health plan, and an enrollee in health in-
surance coverage offered by a health insurance
issuer, and any provider or other person acting on
behalf of such an individual with the individual’s
consent, may appeal any appealable decision (as de-
fined in paragraph (2)) under the procedures de-
scribed in this section and (to the extent applicable)
section 133. Such individuals and providers shall be
provided with a written explanation of the appeal
process and the determination upon the conclusion
of the appeals process and as provided in section
121(b)(8).
(2) APPEALABLE DECISION DEFINED.—In this
section, the term ‘‘appealable decision’’ means any of
the following:
(A) Denial, reduction, or termination of, or
failure to provide or make payment (in whole or
in part) for, a benefit, including a failure to
cover an item or service for which benefits are
otherwise provided because it is determined to
be experimental or investigational or not medi-
cally necessary or appropriate.
(B) Failure to provide coverage of emer-
gency services or reimbursement of mainte-
nance care or post-stabilization care under sec-
tion 101.
(C) Failure to provide a choice of provider
under section 103.
(D) Failure to provide qualified health care
providers under section 103.
(E) Failure to provide access to specialty
and other care under section 104.
(F) Failure to provide continuation of care
under section 105.
(G) Failure to provide coverage of routine
patient costs in connection with an approval
clinical trial under section 106.
(H) Failure to provide access to needed
drugs under section 107(a)(3) or 107(b).
(I) An adverse determination under a utili-
zation review program under section 111.
(J) The imposition of a limitation that is
prohibited under section 151.
(b) INTERNAL APPEAL PROCESS.—
(1) IN GENERAL.—Each group health plan and
health insurance issuer shall establish and maintain
an internal appeal process under which any partici-
pant, beneficiary, enrollee, or provider acting on be-
half of such an individual with the individual’s con-
sent, who is dissatisfied with any appealable decision
has the opportunity to appeal the decision through
an internal appeal process. The appeal may be com-
municated orally.
(2) CONDUCT OF REVIEW.—
(A) IN GENERAL.—The process shall in-
clude a review of the decision by a physician or
other health care professional (or professionals)
who has been selected by the plan or issuer and
who has not been involved in the appealable de-
cision at issue in the appeal.
(B) AVAILABILITY AND PARTICIPATION OF
CLINICAL PEERS.—The individuals conducting
such review shall include one or more clinical
peers (as defined in section 191(c)(2)) who have
not been involved in the appealable decision at
issue in the appeal.
(3) DEADLINE.—
(A) IN GENERAL.—Subject to subsection
(c), the plan or issuer shall conclude each ap-
peal as soon as possible after the time of the re-
ceipt of the appeal in accordance with medical
exigencies of the case involved, but in no event
later than—
(i) 72 hours after the time of receipt
of an expedited appeal, and
(ii) except as provided in subpara-
graph (B), 30 days after such time (or, if
the participant, beneficiary, or enrollee
supplies additional information that was
not available to the plan or issuer at the
time of the receipt of the appeal, after the
date of supplying such additional informa-
tion) in the case of all other appeals.
(B) EXTENSION.—In the case of an appeal
that does not relate to a decision regarding an
expedited appeal and that does not involve med-
ical exigencies, if a group health plan or health
insurance issuer is unable to conclude the ap-
peal within the time period provided under sub-
paragraph (A)(ii) due to circumstances beyond
the control of the plan or issuer, the deadline
shall be extended for up to an additional 3 busi-
ness days if the plan or issuer provides, on or
before 10 days before the deadline otherwise ap-
plicable, written notice to the participant, bene-
ficiary, or enrollee and the provider involved of
the extension and the reasons for the extension.
(4) NOTICE.—If a plan or issuer denies an ap-
peal, the plan or issuer shall provide the participant,
beneficiary, or enrollee and provider involved with
notice in printed form of the denial and the reasons
therefore, together with a notice in printed form of
rights to any further appeal.
(c) EXPEDITED REVIEW PROCESS.—
(1) IN GENERAL.—A group health plan, and a
health insurance issuer, shall establish procedures in
writing for the expedited consideration of appeals
under subsection (b) in situations in which the appli-
cation of the normal timeframe for making a deter-
mination could seriously jeopardize the life or health
of the participant, beneficiary, or enrollee or such an
individual’s ability to regain maximum function.
(2) PROCESS.—Under such procedures—
(A) the request for expedited appeal may
be submitted orally or in writing by an individ-
ual or provider who is otherwise entitled to re-
quest the appeal;
(B) all necessary information, including
the plan’s or issuer’s decision, shall be trans-
mitted between the plan or issuer and the re-
quester by telephone, facsimile, or other simi-
larly expeditious available method; and
(C) the plan or issuer shall expedite the
appeal if the request for an expedited appeal is
submitted under subparagraph (A) by a physi-
cian and the request indicates that the situation
described in paragraph (1) exists.
(d) DIRECT USE OF FURTHER APPEALS.—In the
event that the plan or issuer fails to comply with any of
the deadlines for completion of appeals under this section
or in the event that the plan or issuer for any reason ex-
pressly waives its rights to an internal review of an appeal
under subsection (b), the participant, beneficiary, or en-
rollee involved and the provider involved shall be relieved
of any obligation to complete the appeal involved and may,
at such an individual’s or provider’s option, proceed di-
rectly to seek further appeal through any applicable exter-
nal appeals process.
SEC. 133. EXTERNAL APPEALS OF ADVERSE DETERMINA-
TIONS.
(a) RIGHT TO EXTERNAL APPEAL.—
(1) IN GENERAL.—A group health plan, and a
health insurance issuer offering group health insur-
ance coverage, shall provide for an external appeals
process that meets the requirements of this section
in the case of an externally appealable decision de-
scribed in paragraph (2), for which a timely appeal
is made either by the plan or issuer or by the partic-
ipant, beneficiary, or enrollee, or a representative of
any of them. The appropriate Secretary shall estab-
lish standards to carry out such requirements.
(2) EXTERNALLY APPEALABLE DECISION DE-
FINED.—For purposes of this section, the term ‘‘ex-
ternally appealable decision’’ means an appealable
decision (as defined in section 132(a)(2)) if—
(A) the amount involved exceeds $100; or
(B) the patient’s life or health is jeopard-
ized as a consequence of the decision.
Such term does not include a denial of coverage for
services that are specifically listed in plan or cov-
erage documents as excluded from coverage.
(3) EXHAUSTION OF INTERNAL APPEALS PROC-
ESS.—A plan or issuer may condition the use of an
external appeal process in the case of an externally
appealable decision upon completion of the internal
review process provided under section 132, but only
if the decision is made in a timely basis consistent
with the deadlines provided under this subtitle.
(b) GENERAL ELEMENTS OF EXTERNAL APPEALS
PROCESS.—
(1) CONTRACT WITH QUALIFIED EXTERNAL AP-
PEAL ENTITY.—
(A) CONTRACT REQUIREMENT.—Subject to
subparagraph (B), the external appeal process
under this section of a plan or issuer shall be
conducted under a contract between the plan or
issuer and one or more qualified external appeal
entities (as defined in subsection (c)).
(B) RESTRICTIONS ON QUALIFIED EXTER-
NAL APPEAL ENTITY.—
(i) BY
STATE
FOR
HEALTH
INSUR-
ANCE ISSUERS.—With respect to health in-
surance issuers in a State, the State may
provide for external review activities to be
conducted by a qualified external appeal
entity that is designated by the State or
that is selected by the State in such a
manner as to assure an unbiased deter-
mination.
(ii) BY FEDERAL GOVERNMENT FOR
GROUP HEALTH PLANS.—With respect to
group health plans, the appropriate Sec-
retary may exercise the same authority as
a State may exercise with respect to health
insurance issuers under clause (i). Such
authority may include requiring the use of
the qualified external appeal entity des-
ignated or selected under such clause.
(iii) LIMITATION ON PLAN OR ISSUER
SELECTION.—If an applicable authority
permits more than one entity to qualify as
a qualified external appeal entity with re-
spect to a group health plan or health in-
surance issuer and the plan or issuer may
select among such qualified entities, the
applicable authority—
(I) shall assure that the selection
process will not create any incentives
for external appeal entities to make a
decision in a biased manner, and
(II) shall implement procedures
for auditing a sample of decisions by
such entities to assure that no such
decisions are made in a biased man-
ner.
(C) OTHER
TERMS
AND
CONDITIONS.—
The terms and conditions of a contract under
this paragraph shall be consistent with the
standards the appropriate Secretary shall estab-
lish to assure there is no real or apparent con-
flict of interest in the conduct of external ap-
peal activities. Such contract shall provide that
the direct costs of the process (not including
costs of representation of a participant, bene-
ficiary, or enrollee) shall be paid by the plan or
issuer, and not by the participant, beneficiary,
or enrollee.
(2) ELEMENTS OF PROCESS.—An external ap-
peal process shall be conducted consistent with
standards established by the appropriate Secretary
that include at least the following:
(A) FAIR PROCESS; DE NOVO DETERMINA-
TION.—The process shall provide for a fair, de
novo determination. In carrying out this sub-
paragraph, the determination of medical neces-
sity shall be made under the process without re-
gard to the definition used by the plan or
issuer. However, nothing in this sentence shall
be construed as providing for coverage of items
and services for which benefits are specifically
excluded under the plan or coverage.
(B) DETERMINATION CONCERNING EXTER-
NALLY
APPEALABLE
DECISIONS.—A qualified
external appeal entity shall determine whether a
decision is an externally appealable decision and
related decisions, including—
(i) whether such a decision involves an
expedited appeal;
(ii) the appropriate deadlines for in-
ternal review process required due to medi-
cal exigencies in a case; and
(iii) whether such a process has been
completed.
(C) OPPORTUNITY TO SUBMIT EVIDENCE,
HAVE
REPRESENTATION, 
AND
MAKE
ORAL
PRESENTATION.—Each party to an externally
appealable decision (directly or through an au-
thorized representative or representatives, any
of whom may be an attorney)—
(i) may submit and review evidence
related to the issues in dispute,
(ii) may use the assistance or rep-
resentation of one or more individuals (any
of whom may be an attorney), and
(iii) may make an oral presentation.
(D) PROVISION
OF
INFORMATION.—The
plan or issuer involved shall provide timely ac-
cess to all its records relating to the matter of
the externally appealable decision and to all
provisions of the plan or health insurance cov-
erage (including any coverage manual) relating
to the matter.
(E) TIMELY DECISIONS.—A determination
by the external appeal entity on the decision
shall—
(i) be made orally or in writing and,
if it is made orally, shall be supplied to the
parties in writing as soon as possible;
(ii) be binding on the plan or issuer;
(iii) be made in accordance with the
medical exigencies of the case involved, but
in no event later than 60 days (or 72
hours in the case of an expedited appeal
or, in the case of an appeal involving emer-
gency circumstances, as soon as possible in
accordance with the medical exigencies of
the case, and in no event later than 24
hours) from the date of completion of the
filing of notice requesting an external ap-
peal of the decision;
(iv) state, in layperson’s language, the
basis for the determination, including, if
relevant, any basis in the terms or condi-
tions of the plan or coverage; and
(v) inform the participant, beneficiary,
or enrollee of the individual’s rights (in-
cluding any limitation on such rights) to
seek further review by the courts (or other
process) of the external appeal determina-
tion.
(c) QUALIFICATIONS OF EXTERNAL APPEAL ENTI-
TIES.—
(1) IN GENERAL.—For purposes of this section,
the term ‘‘qualified external appeal entity’’ means,
in relation to a plan or issuer, an entity (which may
be a governmental entity) that is certified under
paragraph (2) as meeting the following require-
ments:
(A) There is no real or apparent conflict of
interest that would impede the entity conduct-
ing external appeal activities independent of the
plan or issuer.
(B) The entity conducts external appeal
activities through clinical peers.
(C) The entity has sufficient medical, legal,
and other expertise and sufficient staffing to
conduct external appeal activities for the plan
or issuer on a timely basis consistent with sub-
section (b)(3)(E).
(D) The entity meets such other require-
ments as the appropriate Secretary may im-
pose.
(2) CERTIFICATION OF EXTERNAL APPEAL EN-
TITIES.—
(A) IN GENERAL.—In order to be treated
as a qualified external appeal entity with re-
spect to—
(i) a group health plan, the entity
must be certified (and, in accordance with
subparagraph (B), periodically recertified)
as meeting the requirements of paragraph
(1) by the Secretary of Labor (or under a
process recognized or approved by the Sec-
retary of Labor); or
(ii) a health insurance issuer operat-
ing in a State, the entity must be certified
(and, in accordance with subparagraph
(B), periodically recertified) as meeting
such requirements by the applicable State
authority (or, if the State has not estab-
lished an adequate certification and recer-
tification process, by the Secretary of
Health and Human Services, or under a
process recognized or approved by such
Secretary).
(B) RECERTIFICATION PROCESS.—The ap-
propriate Secretary shall develop standards for
the recertification of external appeal entities.
Such standards shall include a specification
of—
(i) the information required to be sub-
mitted as a condition of recertification on
the entity’s performance of external appeal
activities, which information shall include
the number of cases reviewed, a summary
of the disposition of those cases, the length
of time in making determinations on those
cases, and 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; and
(ii) the periodicity which recertifi-
cation will be required.
(3) 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, or who has a fidu-
ciary relationship with, any such entity or who fur-
nishes professional services to such entity, shall be
held by reason of the performance of any duty, func-
tion, or activity required or authorized pursuant to
this section, to have violated any criminal law, or to
be civilly liable under any law of the United States
or of any State (or political subdivision thereof) if
due care was exercised in the performance 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.—
(1) IN GENERAL.—Subject to paragraph (2),
the determination by an external appeals entity
under this section is binding on the plan (and issuer,
if any) involved in the determination.
(2) VACATION
OR
MODIFICATION
OF
DECI-
SION.—The determination by an external appeals
entity under this section may be vacated or modified
by a court under the same circumstances as the de-
cision of an arbitrator may be vacated or modified
under sections 10 and 11 of title 9, United States
Code.
Subtitle E—Protecting the Doctor-
Patient Relationship
SEC. 141. PROHIBITION OF INTERFERENCE WITH CERTAIN
MEDICAL COMMUNICATIONS.
(a) PROHIBITION.—
(1) GENERAL
RULE.—The provisions of any
contract or agreement, or the operation of any con-
tract or agreement, between a group health plan or
health insurance issuer in relation to health insur-
ance coverage (including any partnership, associa-
tion, or other organization that enters into or ad-
ministers such a contract or agreement) and a
health care provider (or group of health care provid-
ers) shall not prohibit or otherwise restrict a covered
health care professional (as defined in subsection
(b)) from advising such a participant, beneficiary, or
enrollee who is a patient of the professional about
the health status of the individual or medical care or
treatment for the individual’s condition or disease,
regardless of whether benefits for such care or treat-
ment are provided under the plan or coverage, if the
professional is acting within the lawful scope of
practice.
(2) NULLIFICATION.—Any contract provision or
agreement that restricts or prohibits medical com-
munications in violation of paragraph (1) shall be
null and void.
(b) HEALTH CARE PROFESSIONAL DEFINED.—For
purposes of this section, the term ‘‘health care profes-
sional’’ means a physician (as defined in section 1861(r)
of the Social Security Act) or other health care profes-
sional if coverage for the professional’s services of the pro-
fessional is provided under the group health plan or health
insurance coverage. Such term includes a podiatrist, op-
tometrist, chiropractor, psychologist, dentist, physician as-
sistant, physical or occupational therapist and therapy as-
sistant, speech-language pathologist, audiologist, reg-
istered or licensed practical nurse (including nurse practi-
tioner, clinical nurse specialist, certified registered nurse
anesthetist, and certified nurse-midwife), licensed clinical
social worker, registered respiratory therapist, and cer-
tified respiratory therapy technician.
SEC. 142. PROHIBITION AGAINST TRANSFER OF INDEM-
NIFICATION OR IMPROPER INCENTIVE AR-
RANGEMENTS.
(a) PROHIBITION OF TRANSFER OF INDEMNIFICA-
TION.—
(1) IN GENERAL.—No contract or agreement
between a group health plan or health insurance
issuer (or any agent acting on behalf of such a plan
or issuer) and a health care provider shall contain
any provision purporting to transfer to the health
care provider by indemnification or otherwise any li-
ability relating to activities, actions, or omissions of
the plan, issuer, or agent (as opposed to the pro-
vider).
(2) NULLIFICATION.—Any contract or agree-
ment provision described in paragraph (1) shall be
null and void.
(b) PROHIBITION OF IMPROPER PHYSICIAN INCEN-
TIVE PLANS.—
(1) IN GENERAL.—A group health plan and a
health insurance issuer offering health insurance
coverage may not operate any physician incentive
plan (as defined in subparagraph (B) of section
1876(i)(8) of the Social Security Act) unless the re-
quirements described in subparagraph (A) of such
section are met with respect to such a plan.
(2) APPLICATION.—For purposes of carrying
out paragraph (1), any reference in section
1876(i)(8) of the Social Security Act to the Sec-
retary, an eligible organization, or an individual en-
rolled with the organization shall be treated as a ref-
erence to the applicable authority, a group health
plan or health insurance issuer, respectively, and a
participant, beneficiary, or enrollee with the plan or
organization, respectively.
SEC. 143. ADDITIONAL RULES REGARDING PARTICIPATION
OF HEALTH CARE PROFESSIONALS.
(a) PROCEDURES.—Insofar as a group health plan,
or health insurance issuer that offers health insurance cov-
erage, provides benefits through participating health care
professionals, the plan or issuer shall establish reasonable
procedures relating to the participation (under an agree-
ment between a professional and the plan or issuer) of
such professionals under the plan or coverage. Such proce-
dures shall include—
(1) providing notice of the rules regarding par-
ticipation;
(2) providing written notice of participation de-
cisions that are adverse to professionals; and
(3) providing a process within the plan or issuer
for appealing such adverse decisions, including the
presentation of information and views of the profes-
sional regarding such decision.
(b) CONSULTATION IN MEDICAL POLICIES.—A group
health plan, and health insurance issuer that offers health
insurance coverage, shall consult with participating physi-
cians (if any) regarding the plan’s or issuer’s medical pol-
icy, quality, and medical management procedures.
SEC. 144. PROTECTION FOR PATIENT ADVOCACY.
(a) PROTECTION FOR USE OF UTILIZATION REVIEW
AND GRIEVANCE PROCESS.—A group health plan, and a
health insurance issuer with respect to the provision of
health insurance coverage, may not retaliate against a par-
ticipant, beneficiary, enrollee, or health care provider
based on the participant’s, beneficiary’s, enrollee’s or pro-
vider’s use of, or participation in, a utilization review proc-
ess or a grievance process of the plan or issuer (including
an internal or external review or appeal process) under
this title.
(b) PROTECTION
FOR
QUALITY
ADVOCACY
BY
HEALTH CARE PROFESSIONALS.—
(1) IN
GENERAL.—A group health plan or
health insurance issuer may not retaliate or dis-
criminate against a protected health care profes-
sional because the professional in good faith—
(A) discloses information relating to the
care, services, or conditions affecting one or
more participants, beneficiaries, or enrollees of
the plan or issuer to an appropriate public reg-
ulatory agency, an appropriate private accredi-
tation body, or appropriate management per-
sonnel of the plan or issuer;
(B) initiates, cooperates, or otherwise par-
ticipates in an investigation or proceeding by
such an agency with respect to such care, serv-
ices, or conditions; or
(C) participates in an external appeals
process under section 133.
If an institutional health care provider is a partici-
pating provider with such a plan or issuer or other-
wise receives payments for benefits provided by such
a plan or issuer, the provisions of the previous sen-
tence shall apply to the provider in relation to care,
services, or conditions affecting one or more patients
within an institutional health care provider in the
same manner as they apply to the plan or issuer in
relation to care, services, or conditions provided to
one or more participants, beneficiaries, or enrollees;
and for purposes of applying this sentence, any ref-
erence to a plan or issuer is deemed a reference to
the institutional health care provider.
(2) GOOD
FAITH
ACTION.—For purposes of
paragraph (1), a protected health care professional
is considered to be acting in good faith with respect
to disclosure of information or participation if, with
respect to the information disclosed as part of the
action—
(A) the disclosure is made on the basis of
personal knowledge and is consistent with that
degree of learning and skill ordinarily possessed
by health care professionals with the same li-
censure or certification and the same experi-
ence;
(B) the professional reasonably believes the
information to be true;
(C) the information evidences either a vio-
lation of a law, rule, or regulation, of an appli-
cable accreditation standard, or of a generally
recognized professional or clinical standard or
that a patient is in imminent hazard of loss of
life or serious injury; and
(D) subject to subparagraphs (B) and (C)
of paragraph (3), the professional has followed
reasonable internal procedures of the plan,
issuer, or institutional health care provider es-
tablished or the purpose of addressing quality
concerns before making the disclosure.
(3) EXCEPTION AND SPECIAL RULE.—
(A) GENERAL EXCEPTION.—Paragraph (1)
does not protect disclosures that would violate
Federal or State law or diminish or impair the
rights of any person to the continued protection
of confidentiality of communications provided
by such law.
(B) NOTICE OF INTERNAL PROCEDURES.—
Subparagraph (D) of paragraph (2) shall not
apply unless the internal procedures involved
are reasonably expected to be known to the
health care professional involved. For purposes
of this subparagraph, a health care professional
is reasonably expected to know of internal pro-
cedures if those procedures have been made
available to the professional through distribu-
tion or posting.
(C) INTERNAL PROCEDURE EXCEPTION.—
Subparagraph (D) of paragraph (2) also shall
not apply if—
(i) the disclosure relates to an immi-
nent hazard of loss of life or serious injury
to a patient;
(ii) the disclosure is made to an ap-
propriate private accreditation body pursu-
ant to disclosure procedures established by
the body; or
(iii) the disclosure is in response to an
inquiry made in an investigation or pro-
ceeding of an appropriate public regulatory
agency and the information disclosed is
limited to the scope of the investigation or
proceeding.
(4) ADDITIONAL
CONSIDERATIONS.—It shall
not be a violation of paragraph (1) to take an ad-
verse action against a protected health care profes-
sional if the plan, issuer, or provider taking the ad-
verse action involved demonstrates that it would
have taken the same adverse action even in the ab-
sence of the activities protected under such para-
graph.
(5) NOTICE.—A group health plan, health in-
surance issuer, and institutional health care provider
shall post a notice, to be provided or approved by
the Secretary of Labor, setting forth excerpts from,
or summaries of, the pertinent provisions of this
subsection and information pertaining to enforce-
ment of such provisions.
(6) CONSTRUCTIONS.—
(A) DETERMINATIONS
OF
COVERAGE.—
Nothing in this subsection shall be construed to
prohibit a plan or issuer from making a deter-
mination not to pay for a particular medical
treatment or service or the services of a type of
health care professional.
(B) ENFORCEMENT OF PEER REVIEW PRO-
TOCOLS AND INTERNAL PROCEDURES.—Noth-
ing in this subsection shall be construed to pro-
hibit a plan, issuer, or provider from establish-
ing and enforcing reasonable peer review or uti-
lization review protocols or determining whether
a protected health care professional has com-
plied with those protocols or from establishing
and enforcing internal procedures for the pur-
pose of addressing quality concerns.
(C) RELATION TO OTHER RIGHTS.—Noth-
ing in this subsection shall be construed to
abridge rights of participants, beneficiaries, en-
rollees, and protected health care professionals
under other applicable Federal or State laws.
(7) PROTECTED HEALTH CARE PROFESSIONAL
DEFINED.—For purposes of this subsection, the
term ‘‘protected health care professional’’ means an
individual who is a licensed or certified health care
professional and who—
(A) with respect to a group health plan or
health insurance issuer, is an employee of the
plan or issuer or has a contract with the plan
or issuer for provision of services for which ben-
efits are available under the plan or issuer; or
(B) with respect to an institutional health
care provider, is an employee of the provider or
has a contract or other arrangement with the
provider respecting the provision of health care
services.
Subtitle F—Promoting Good
Medical Practice
SEC. 151. PROMOTING GOOD MEDICAL PRACTICE.
(a) PROHIBITING ARBITRARY LIMITATIONS OR CON-
DITIONS FOR THE PROVISION OF SERVICES.—
(1) IN GENERAL.—A group health plan, and a
health insurance issuer in connection with the provi-
sion of health insurance coverage, may not arbitrar-
ily interfere with or alter the decision of the treating
physician regarding the manner or setting in which
particular services are delivered if the services are
medically necessary or appropriate for treatment or
diagnosis to the extent that such treatment or diag-
nosis is otherwise a covered benefit.
(2) CONSTRUCTION.—Paragraph (1) shall not
be construed as prohibiting a plan or issuer from
limiting the delivery of services to one or more
health care providers within a network of such pro-
viders.
(3) MANNER OR SETTING DEFINED.—In para-
graph (1), the term ‘‘manner or setting’’ means the
location of treatment, such as whether treatment is
provided on an inpatient or outpatient basis, and the
duration of treatment, such as the number of days
in a hospital. Such term does not include the cov-
erage of a particular service or treatment.
(b) NO CHANGE IN COVERAGE.—Subsection (a) shall
not be construed as requiring coverage of particular serv-
ices the coverage of which is otherwise not covered under
the terms of the plan or coverage or from conducting utili-
zation review activities consistent with this subsection.
(c) MEDICAL NECESSITY OR APPROPRIATENESS DE-
FINED.—In subsection (a), the term ‘‘medically necessary
or appropriate’’ means, with respect to a service or benefit,
a service or benefit which is consistent with generally ac-
cepted principles of professional medical practice.
SEC. 152. STANDARDS RELATING TO BENEFITS FOR CER-
TAIN BREAST CANCER TREATMENT.
(a) INPATIENT CARE.—
(1) IN GENERAL.—A group health plan, and a
health insurance issuer offering group health insur-
ance coverage, that provides medical and surgical
benefits shall ensure that inpatient coverage with re-
spect to the treatment of breast cancer is provided
for a period of time as is determined by the attend-
ing physician, in the physician’s professional judg-
ment consistent with generally accepted medical
standards, in consultation with the patient, to be
medically appropriate following—
(A) a mastectomy;
(B) a lumpectomy; or
(C) a lymph node dissection for the treat-
ment of breast cancer.
(2) EXCEPTION.—Nothing in this section shall
be construed as requiring the provision of inpatient
coverage if the attending physician and patient de-
termine that a shorter period of hospital stay is
medically appropriate.
(b) PROHIBITIONS.—A group health plan, and a
health insurance issuer offering group health insurance
coverage in connection with a group health plan, may
not—
(1) deny to a woman eligibility, or continued
eligibility, to enroll or to renew coverage under the
terms of the plan, solely for the purpose of avoiding
the requirements of this section;
(2) provide monetary payments or rebates to
women to encourage such women to accept less than
the minimum protections available under this sec-
tion;
(3) penalize or otherwise reduce or limit the re-
imbursement of an attending provider because such
provider provided care to an individual participant
or beneficiary in accordance with this section;
(4) provide incentives (monetary or otherwise)
to an attending provider to induce such provider to
provide care to an individual participant or bene-
ficiary in a manner inconsistent with this section; or
(5) subject to subsection (c)(3), restrict benefits
for any portion of a period within a hospital length
of stay required under subsection (a) in a manner
which is less favorable than the benefits provided for
any preceding portion of such stay.
(c) RULES OF CONSTRUCTION.—
(1) Nothing in this section shall be construed to
require 
a 
woman 
who 
is 
a 
participant 
or
beneficiary—
(A) to undergo a mastectomy, lumpectomy,
or lymph node dissection in a hospital; or
(B) to stay in the hospital for a fixed pe-
riod 
of 
time 
following 
a 
mastectomy,
lumpectomy, or lymph node dissection.
(2) This section shall not apply with respect to
any group health plan, or any group health insur-
ance coverage offered by a health insurance issuer,
which does not provide benefits for hospital lengths
of 
stay 
in 
connection 
with 
a 
mastectomy,
lumpectomy, or lymph node dissection for the treat-
ment of breast cancer.
(3) Nothing in this section shall be construed as
preventing a group health plan or issuer from impos-
ing deductibles, coinsurance, or other cost-sharing in
relation to benefits for hospital lengths of stay in
connection with a mastectomy or lymph node dissec-
tion for the treatment of breast cancer under the
plan (or under health insurance coverage offered in
connection with a group health plan), except that
such coinsurance or other cost-sharing for any por-
tion of a period within a hospital length of stay re-
quired under subsection (a) may not be greater than
such coinsurance or cost-sharing for any preceding
portion of such stay.
(d) LEVEL AND TYPE OF REIMBURSEMENTS.—Noth-
ing in this section shall be construed to prevent a group
health plan or a health insurance issuer offering group
health insurance coverage from negotiating the level and
type of reimbursement with a provider for care provided
in accordance with this section.
(e) EXCEPTION FOR HEALTH INSURANCE COVERAGE
IN CERTAIN STATES.—
(1) IN
GENERAL.—The requirements of this
section shall not apply with respect to health insur-
ance coverage if there is a State law (as defined in
section 2723(d)(1) of the Public Health Service Act)
for a State that regulates such coverage that is de-
scribed in any of the following subparagraphs:
(A) Such State law requires such coverage
to provide for at least a 48-hour hospital length
of stay following a mastectomy performed for
treatment of breast cancer and at least a 24-
hour hospital length of stay following a lymph
node dissection for treatment of breast cancer.
(B) Such State law requires, in connection
with such coverage for surgical treatment of
breast cancer, that the hospital length of stay
for such care is left to the decision of (or re-
quired to be made by) the attending provider in
consultation with the woman involved.
(2) CONSTRUCTION.—Section 2723(a)(1) of the
Public Health Service Act and section 731(a)(1) of
the Employee Retirement Income Security Act of
1974 shall not be construed as superseding a State
law described in paragraph (1).
Subtitle G—Definitions
SEC. 191. DEFINITIONS.
(a) INCORPORATION OF GENERAL DEFINITIONS.—
The provisions of section 2971 of the Public Health Serv-
ice Act shall apply for purposes of this title in the same
manner as they apply for purposes of title XXVII of such
Act.
(b) SECRETARY.—Except as otherwise provided, the
term ‘‘Secretary’’ means the Secretary of Health and
Human Services, in consultation with the Secretary of
Labor and the Secretary of the Treasury and the term
‘‘appropriate Secretary’’ means the Secretary of Health
and Human Services in relation to carrying out this title
under sections 2706 and 2751 of the Public Health Serv-
ice Act, the Secretary of Labor in relation to carrying out
this title under section 714 of the Employee Retirement
Income Security Act of 1974, and the Secretary of the
Treasury in relation to carrying out this title under chap-
ter 100 and section 4980D of the Internal Revenue Code
of 1986.
(c) ADDITIONAL DEFINITIONS.—For purposes of this
title:
(1) APPLICABLE AUTHORITY.—The term ‘‘ap-
plicable authority’’ means—
(A) in the case of a group health plan, the
Secretary of Health and Human Services and
the Secretary of Labor; and
(B) in the case of a health insurance issuer
with respect to a specific provision of this title,
the applicable State authority (as defined in
section 2791(d) of the Public Health Service
Act), or the Secretary of Health and Human
Services, if such Secretary is enforcing such
provision 
under 
section 
2722(a)(2) 
or
2761(a)(2) of the Public Health Service Act.
(2) CLINICAL PEER.—The term ‘‘clinical peer’’
means, with respect to a review or appeal, a physi-
cian (allopathic or osteopathic) or other health care
professional who holds a license, and who, in the
case of a physician, is appropriately certified by a
nationally recognized, peer reviewed accrediting body
in the same or similar specialty as typically manages
the medical condition, procedure, or treatment under
review or appeal and includes a pediatric specialist
where appropriate; except that only a physician may
be a clinical peer with respect to the review or ap-
peal of treatment recommended or rendered by a
physician.
(3) HEALTH
CARE
PROVIDER.—The term
‘‘health care provider’’ includes a physician or other
health care professional, as well as an institutional
provider of health care services.
(4) 
NONPARTICIPATING.—The 
term 
‘‘non-
participating’’ means, with respect to a health care
provider that provides health care items and services
to a participant, beneficiary, or enrollee under group
health plan or health insurance coverage, a health
care provider that is not a participating health care
provider with respect to such items and services.
(5) PARTICIPATING.—The term ‘‘participating’’
mean, with respect to a health care provider that
provides health care items and services to a partici-
pant, beneficiary, or enrollee under group health
plan or health insurance coverage offered by a
health insurance issuer, a health care provider that
furnishes such items and services under a contract
or other arrangement with the plan or issuer.
SEC. 192. PREEMPTION; STATE FLEXIBILITY; CONSTRUC-
TION.
(a) CONTINUED APPLICABILITY
OF STATE LAW
WITH RESPECT TO HEALTH INSURANCE ISSUERS.—
(1) IN GENERAL.—Subject to paragraph (2),
this title shall not be construed to supersede any
provision of State law which establishes, implements,
or continues in effect any standard or requirement
solely relating to health insurance issuers in connec-
tion with group health insurance coverage, except to
the extent that such standard or requirement pre-
vents the application of a requirement of this title,
or which requires (in connection with any litigation
against a health insurance issuer) that the dispute
be first, or simultaneously, considered through an al-
ternative dispute resolution system.
(2) CONTINUED
PREEMPTION
WITH
RESPECT
TO GROUP HEALTH PLANS.—Nothing in this title
shall be construed to affect or modify the provisions
of section 514 of the Employee Retirement Income
Security Act of 1974 with respect to group health
plans.
(b) RULES OF CONSTRUCTION.—Except as provided
in section 152, nothing in this title shall be construed as
requiring a group health plan or health insurance coverage
to provide specific benefits under the terms of such plan
or coverage.
(c) DEFINITIONS.—For purposes of this section:
(1) STATE
LAW.—The term ‘‘State law’’ in-
cludes all laws, decisions, rules, regulations, or other
State action having the effect of law, of any State.
A law of the United States applicable only to the
District of Columbia shall be treated as a State law
rather than a law of the United States.
(2) STATE.—The term ‘‘State’’ includes a
State, the Northern Mariana Islands, any political
subdivisions of a State or such Islands, or any agen-
cy or instrumentality of either.
SEC. 193. REGULATIONS.
The Secretaries of Health and Human Services and
Labor shall issue such regulations as may be necessary