II 
110TH CONGRESS 
2D SESSION 
H. R. 758 
IN THE SENATE OF THE UNITED STATES 
SEPTEMBER 25 (legislative day, SEPTEMBER 17), 2008 
Received 
AN ACT 
To require that health plans provide coverage for a minimum 
hospital stay for mastectomies, lumpectomies, and lymph 
node dissection for the treatment of breast cancer and 
coverage for secondary consultations. 
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled, 
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SECTION 1. SHORT TITLE. 
This Act may be cited as the ‘‘Breast Cancer Patient 
Protection Act of 2008’’. 
SEC. 2. FINDINGS. 
Congress finds that— 
(1) the offering and operation of health plans 
affect commerce among the States; 
(2) health care providers located in a State 
serve patients who reside in the State and patients 
who reside in other States; 
(3) in order to provide for uniform treatment of 
health care providers and patients among the States, 
it is necessary to cover health plans operating in 1 
State as well as health plans operating among the 
several States; 
(4) currently, 20 States mandate minimum hos-
pital stay coverage after a patient undergoes a mas-
tectomy; 
(5) according to the American Cancer Society, 
there were 40,954 deaths due to breast cancer in 
women in 2004; 
(6) according to the American Cancer Society, 
there are currently over 2.0 million women living in 
the United States who have been treated for breast 
cancer; and 
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(7) according to the American Cancer Society, 
a woman in the United States has a 1 in 8 chance 
of developing invasive breast cancer in her lifetime. 
SEC. 3. AMENDMENTS TO THE EMPLOYEE RETIREMENT IN-
COME SECURITY ACT OF 1974. 
(a) IN GENERAL.—Subpart B of part 7 of subtitle 
B of title I of the Employee Retirement Income Security 
Act of 1974 (29 U.S.C. 1185 et seq.) is amended by add-
ing at the end the following: 
‘‘SEC. 714. REQUIRED COVERAGE FOR MINIMUM HOSPITAL 
STAY FOR MASTECTOMIES, LUMPECTOMIES, 
AND LYMPH NODE DISSECTIONS FOR THE 
TREATMENT OF BREAST CANCER AND COV-
ERAGE FOR SECONDARY CONSULTATIONS. 
‘‘(a) INPATIENT CARE.— 
‘‘(1) IN GENERAL.—A group health plan, and a 
health insurance issuer providing health insurance 
coverage in connection with a group health plan, 
that provides medical and surgical benefits shall en-
sure that inpatient (and in the case of a 
lumpectomy, outpatient) coverage and radiation 
therapy is provided for breast cancer treatment. 
Such plan or coverage may not— 
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‘‘(A) insofar as the attending physician, in 
consultation with the patient, determines it to 
be medically necessary— 
‘‘(i) restrict benefits for any hospital 
length of stay in connection with a mastec-
tomy or breast conserving surgery (such as 
a lumpectomy) for the treatment of breast 
cancer to less than 48 hours; or 
‘‘(ii) restrict benefits for any hospital 
length of stay in connection with a lymph 
node dissection for the treatment of breast 
cancer to less than 24 hours; or 
‘‘(B) require that a provider obtain author-
ization from the plan or the issuer for pre-
scribing any length of stay required under this 
paragraph. 
‘‘(2) EXCEPTION.—Nothing in this section shall 
be construed as requiring the provision of inpatient 
coverage if the attending physician, in consultation 
with the patient, determines that either a shorter pe-
riod of hospital stay, or outpatient treatment, is 
medically appropriate. 
‘‘(b) PROHIBITION ON CERTAIN MODIFICATIONS.— 
In implementing the requirements of this section, a group 
health plan, and a health insurance issuer providing health 
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insurance coverage in connection with a group health plan, 
may not modify the terms and conditions of coverage 
based on the determination by a participant or beneficiary 
to request less than the minimum coverage required under 
subsection (a). 
‘‘(c) NOTICE.—A group health plan, and a health in-
surance issuer providing health insurance coverage in con-
nection with a group health plan shall provide notice to 
each participant and beneficiary under such plan regard-
ing the coverage required by this section in accordance 
with regulations promulgated by the Secretary. Such no-
tice shall be in writing and prominently positioned in the 
summary of the plan made available or distributed by the 
plan or issuer and shall be transmitted— 
‘‘(1) in the next mailing made by the plan or 
issuer to the participant or beneficiary; or 
‘‘(2) as part of any yearly informational packet 
sent to the participant or beneficiary; 
whichever is earlier. 
‘‘(d) SECONDARY CONSULTATIONS.— 
‘‘(1) IN GENERAL.—A group health plan, and a 
health insurance issuer providing health insurance 
coverage in connection with a group health plan, 
that provides coverage with respect to medical and 
surgical services provided in relation to the diagnosis 
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and treatment of cancer shall ensure that coverage 
is provided for secondary consultations, on terms 
and conditions that are no more restrictive than 
those applicable to the initial consultations, by spe-
cialists in the appropriate medical fields (including 
pathology, radiology, and oncology) to confirm or re-
fute such diagnosis. Such plan or issuer shall ensure 
that coverage is provided for such secondary con-
sultation whether such consultation is based on a 
positive or negative initial diagnosis. In any case in 
which the attending physician certifies in writing 
that services necessary for such a secondary con-
sultation are not sufficiently available from special-
ists operating under the plan with respect to whose 
services coverage is otherwise provided under such 
plan or by such issuer, such plan or issuer shall en-
sure that coverage is provided with respect to the 
services necessary for the secondary consultation 
with any other specialist selected by the attending 
physician for such purpose at no additional cost to 
the individual beyond that which the individual 
would have paid if the specialist was participating in 
the network of the plan. 
‘‘(2) EXCEPTION.—Nothing in paragraph (1) 
shall be construed as requiring the provision of sec-
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ondary consultations where the patient determines 
not to seek such a consultation. 
‘‘(e) PROHIBITION ON PENALTIES OR INCENTIVES.— 
A group health plan, and a health insurance issuer pro-
viding health insurance coverage in connection with a 
group health plan, may not— 
‘‘(1) penalize or otherwise reduce or limit the 
reimbursement of a provider or specialist because 
the provider or specialist provided care to a partici-
pant or beneficiary in accordance with this section; 
‘‘(2) provide financial or other incentives to a 
physician or specialist to induce the physician or 
specialist to keep the length of inpatient stays of pa-
tients following a mastectomy, lumpectomy, or a 
lymph node dissection for the treatment of breast 
cancer below certain limits or to limit referrals for 
secondary consultations; or 
‘‘(3) provide financial or other incentives to a 
physician or specialist to induce the physician or 
specialist to refrain from referring a participant or 
beneficiary for a secondary consultation that would 
otherwise be covered by the plan or coverage in-
volved under subsection (d).’’. 
(b) CLERICAL AMENDMENT.—The table of contents 
in section 1 of the Employee Retirement Income Security 
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