236
‘‘(2) provide monetary payments or rebates to
enrollees to encourage such enrollees to accept less
than the minimum protections available under this
section;
‘‘(3) penalize or otherwise reduce or limit the
reimbursement of an attending physician because
such physician provided care to a participant or ben-
eficiary in accordance with this section; or
‘‘(4) provide incentives (monetary or otherwise)
to an attending physician to induce such physician
to provide care to a participant or beneficiary in a
manner inconsistent with this section.
‘‘(g) RULES OF CONSTRUCTION.—
‘‘(1) HMO NOT
OFFERING
BENEFITS.—This
section shall not apply with respect to any managed
care organization under a group health plan, or
through a health insurance issuer providing health
insurance coverage in connection with a group health
plan, that does not provide benefits for stays in a
continuing care retirement community, skilled nurs-
ing facility, or other qualified facility.
‘‘(2) COST-SHARING.—Nothing in this section
shall be construed as preventing a managed care or-
ganization under a group health plan, or through a
health insurance issuer providing health insurance
237
coverage in connection with a group health plan,
from imposing deductibles, coinsurance, or other
cost-sharing in relation to benefits for care in a con-
tinuing care facility.
‘‘(h) PREEMPTION; EXCEPTION FOR HEALTH INSUR-
ANCE COVERAGE IN CERTAIN STATES.—
‘‘(1) IN GENERAL.—The requirements of this
section shall not apply with respect to health insur-
ance coverage to the extent that a State law (as de-
fined in section 2723(d)(1) of the Public Health
Service Act) applies to such coverage and is de-
scribed in any of the following subparagraphs:
‘‘(A) Such State law requires such cov-
erage to provide for referral to a continuing
care retirement community, skilled nursing fa-
cility, or other qualified facility in a manner
that is more protective of participants or bene-
ficiaries than the provisions of this section.
‘‘(B) Such State law expands the range of
services or facilities covered under this section
and is otherwise more protective of the rights of
participants or beneficiaries than the provisions
of this section.
‘‘(2) CONSTRUCTION.—Section 731(a)(1) shall
not be construed to provide that any requirement of
238
this section applies with respect to health insurance
coverage, to the extent that a State law described
in paragraph (1) applies to such coverage.
‘‘(i) PENALTIES.—A participant or beneficiary may
enforce the provisions of this section in an appropriate
Federal district court. An action for injunctive relief or
damages may be commenced on behalf of the participant
or beneficiary by the participant’s or beneficiary’s legal
representative. The court may award reasonable attorneys’
fees to the prevailing party. If a beneficiary dies before
conclusion of an action under this section, the action may
be maintained by a representative of the participant’s or
beneficiary’s estate.
‘‘(j) DEFINITIONS.—In this section:
‘‘(1) ATTENDING ACUTE CARE PROVIDER.—The
term ‘attending acute care provider’ means anyone
licensed or certified under State law to provide
health care services who is operating within the
scope of such license and who is primarily respon-
sible for the care of the enrollee.
‘‘(2) CONTINUING CARE RETIREMENT COMMU-
NITY.—The term ‘continuing care retirement com-
munity’ means an organization that provides or ar-
ranges for the provision of housing and health-re-
lated services to an older person under an agreement
239
effective for the life of the person or for a specified
period greater than 1 year.
‘‘(3) MANAGED
CARE
ORGANIZATION.—The
term ‘managed care organization’ means an organi-
zation that provides comprehensive health services to
participants or beneficiaries, directly or under con-
tract or other agreement, on a prepayment basis to
such individuals. For purposes of this section, the
following shall be considered as managed care orga-
nizations:
‘‘(A) A Medicare+Choice plan authorized
under section 1851(a) of the Social Security
Act (42 U.S.C. 1395w–21(a)).
‘‘(B) Any other entity that manages the
cost, utilization, and delivery of health care
through the use of predetermined periodic pay-
ments to health care providers employed by or
under contract or other agreement, directly or
indirectly, with the entity.
‘‘(4) OTHER QUALIFIED FACILITY.—The term
‘other qualified facility’ means any facility that can
provide the services required by the participant or
beneficiary consistent with State and Federal law.
‘‘(5) SKILLED NURSING FACILITY.—The term
‘skilled nursing facility’ means a facility that meets
240
the requirements of section 1819 of the Social Secu-
rity Act (42 U.S.C. 1395i–3).’’.
(2) CLERICAL AMENDMENT.—The table of con-
tents in section 1 of the Employee Retirement In-
come Security Act of 1974 is amended by inserting
after the items relating to subpart B of part 7 of
subtitle B of title I the following new item:
‘‘Sec. 714. Ensuring choice for continuing care.’’.
(3) EFFECTIVE DATE.—The amendments made
by this section shall apply with respect to plan years
beginning on or after January 1, 2001.
(b) AMENDMENT TO THE PUBLIC HEALTH SERVICE
ACT RELATING TO THE GROUP MARKET.—
(1) IN GENERAL.—Subpart 2 of part A of title
XXVII of the Public Health Service Act (42 U.S.C.
300gg–4 et seq.) is amended by adding at the end
the following new section:
‘‘SEC. 2707. ENSURING CHOICE FOR CONTINUING CARE.
‘‘(a) IN GENERAL.—With respect to health insurance
coverage provided to enrollees through a managed care or-
ganization under a group health plan, or through a health
insurance issuer providing health insurance coverage in
connection with a group health plan, such plan or issuer
may not deny coverage for services provided to such en-
rollee by a continuing care retirement community, skilled
nursing facility, or other qualified facility in which the en-
241
rollee resided prior to a hospitalization, regardless of
whether such organization is under contract with such
community or facility if the requirements described in sub-
section (b) are met.
‘‘(b) REQUIREMENTS.—The requirements of this sub-
section are that—
‘‘(1) the service involved is a service for which
the managed care organization involved would be re-
quired to provide or pay for under its contract with
the enrollee if the continuing care retirement com-
munity, skilled nursing facility, or other qualified fa-
cility were under contract with the organization;
‘‘(2) the enrollee involved—
‘‘(A) resided in the continuing care retire-
ment community, skilled nursing facility, or
other qualified facility prior to being hospital-
ized;
‘‘(B) had a contractual or other right to
return to the facility after hospitalization; and
‘‘(C) elects to return to the facility after
hospitalization, whether or not the residence of
the enrollee after returning from the hospital is
the same part of the facility in which the bene-
ficiary resided prior to hospitalization;
242
‘‘(3) the continuing care retirement community,
skilled nursing facility, or other qualified facility has
the capacity to provide the services the enrollee
needs; and
‘‘(4) the continuing care retirement community,
skilled nursing facility, or other qualified facility is
willing to accept substantially similar payment under
the same terms and conditions that apply to simi-
larly situated health care facility providers under
contract with the organization involved.
‘‘(c) SERVICES TO PREVENT HOSPITALIZATION.—A
group health plan or health insurance issuer to which this
section applies may not deny payment for a skilled nursing
service provided to an enrollee by a continuing care retire-
ment community, skilled nursing facility, or other quali-
fied facility in which the enrollee resides, without a pre-
ceding hospital stay, regardless of whether the plan or
issuer is under contract with such community or facility,
if—
‘‘(1) the plan or issuer has determined that the
service is necessary to prevent the hospitalization of
the enrollee; and
‘‘(2) the service to prevent hospitalization is
provided as an additional benefit as described in sec-
tion 417.594 of title 42, Code of Federal Regula-
243
tions, and would be covered as provided for in sub-
section (b)(1).
‘‘(d) RIGHTS OF SPOUSES.—A group health plan or
health insurance issuer to which this section applies shall
not deny payment for services provided by a skilled nurs-
ing facility for the care of an enrollee, regardless of wheth-
er the plan or issuer is under contract with such facility,
if the spouse of the enrollee is already a resident of such
facility and the requirements described in subsection (b)
are met.
‘‘(e) EXCEPTIONS.—Subsection (a) shall not apply—
‘‘(1) where the attending acute care provider
and the enrollee (or a designated representative of
the enrollee where the enrollee is physically or men-
tally incapable of making an election under this
paragraph) do not elect to pursue a course of treat-
ment necessitating continuing care; or
‘‘(2) unless the community or facility involved—
‘‘(A) meets all applicable licensing and cer-
tification requirements of the State in which it
is located; and
‘‘(B) agrees to reimbursement for the care
of the enrollee at a rate similar to the rate ne-
gotiated by the managed care organization with
similar providers of care for similar services.
244
‘‘(f) PROHIBITIONS.—A group health plan and a
health insurance issuer providing health insurance cov-
erage in connection with a group health plan may not—
‘‘(1) deny to an individual eligibility, or contin-
ued eligibility, to enroll or to renew coverage with a
managed care organization under the plan, solely for
the purpose of avoiding the requirements of this sec-
tion;
‘‘(2) provide monetary payments or rebates to
enrollees to encourage such enrollees to accept less
than the minimum protections available under this
section;
‘‘(3) penalize or otherwise reduce or limit the
reimbursement of an attending physician because
such physician provided care to an enrollee in ac-
cordance with this section; or
‘‘(4) provide incentives (monetary or otherwise)
to an attending physician to induce such physician
to provide care to an enrollee in a manner incon-
sistent with this section.
‘‘(g) RULES OF CONSTRUCTION.—
‘‘(1) HMO NOT
OFFERING
BENEFITS.—This
section shall not apply with respect to any managed
care organization under a group health plan, or
through a health insurance issuer providing health
245
insurance coverage in connection with a group health
plan, that does not provide benefits for stays in a
continuing care retirement community, skilled nurs-
ing facility, or other qualified facility.
‘‘(2) COST-SHARING.—Nothing in this section
shall be construed as preventing a managed care or-
ganization under a group health plan, or through a
health insurance issuer providing health insurance
coverage in connection with a group health plan,
from imposing deductibles, coinsurance, or other
cost-sharing in relation to benefits for care in a con-
tinuing care facility.
‘‘(h) PREEMPTION; EXCEPTION FOR HEALTH INSUR-
ANCE COVERAGE IN CERTAIN STATES.—
‘‘(1) IN GENERAL.—The requirements of this
section shall not apply with respect to health insur-
ance coverage to the extent that a State law (as de-
fined in section 2723(d)(1)) applies to such coverage
and is described in any of the following subpara-
graphs:
‘‘(A) Such State law requires such cov-
erage to provide for referral to a continuing
care retirement community, skilled nursing fa-
cility, or other qualified facility in a manner
246
that is more protective of the enrollee than the
provisions of this section.
‘‘(B) Such State law expands the range of
services or facilities covered under this section
and is otherwise more protective of enrollee
rights than the provisions of this section.
‘‘(2) CONSTRUCTION.—Section 2723(a)(1) shall
not be construed to provide that any requirement of
this section applies with respect to health insurance
coverage, to the extent that a State law described in
paragraph (1) applies to such coverage.
‘‘(i) PENALTIES.—An enrollee may enforce the provi-
sions of this section in an appropriate Federal district
court. An action for injunctive relief or damages may be
commenced on behalf of the enrollee by the enrollee’s legal
representative. The court may award reasonable attorneys’
fees to the prevailing party. If a beneficiary dies before
conclusion of an action under this section, the action may
be maintained by a representative of the enrollee’s estate.
‘‘(j) DEFINITIONS.—In this section:
‘‘(1) ATTENDING ACUTE CARE PROVIDER.—The
term ‘attending acute care provider’ means anyone
licensed or certified under State law to provide
health care services who is operating within the
247
scope of such license and who is primarily respon-
sible for the care of the enrollee.
‘‘(2) CONTINUING CARE RETIREMENT COMMU-
NITY.—The term ‘continuing care retirement com-
munity’ means an organization that provides or ar-
ranges for the provision of housing and health-re-
lated services to an older person under an agreement
effective for the life of the person or for a specified
period greater than 1 year.
‘‘(3) MANAGED
CARE
ORGANIZATION.—The
term ‘managed care organization’ means an organi-
zation that provides comprehensive health services to
enrollees, directly or under contract or other agree-
ment, on a prepayment basis to such individuals.
For purposes of this section, the following shall be
considered as managed care organizations:
‘‘(A) A Medicare+Choice plan authorized
under section 1851(a) of the Social Security
Act (42 U.S.C. 1395w–21(a)).
‘‘(B) Any other entity that manages the
cost, utilization, and delivery of health care
through the use of predetermined periodic pay-
ments to health care providers employed by or
under contract or other agreement, directly or
indirectly, with the entity.