Pre-existing Conditions Protection Act of 2021
Bill: H.R.892 | Sponsor: Rep. McMorris Rodgers, Cathy (R-WA)
Policy area: Health

Summary:
Pre-existing Conditions Protection Act of 2021  This bill reestablishes requirements for private health insurance plans with respect to preexisting conditions, guaranteed enrollment, and discrimination based on health-related factors if they are repealed by another law.  In such event, the bill prohibits private health insurance plans from (1) limiting or excluding benefits covering preexisting conditions; (2) denying enrollment to employers or individual applicants, subject to specified limits; (3) establishing rules for eligibility based on an individual's health status; or (4) requiring an individual to a pay higher premium than similarly situated individuals enrolled in the plan based the individual's health status. The bill also prohibits plans from collecting genetic information in connection with issuing health insurance and provides requirements for workplace wellness programs connected to health insurance.

To amend the Public Health Service Act to prohibit application of pre-
 existing condition exclusions and to guarantee availability of health 
 insurance coverage in the individual and group market, contingent on 
   the enactment of legislation repealing the Patient Protection and 
              Affordable Care Act, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Pre-existing Conditions Protection 
Act of 2021''.

SEC. 2. PROHIBITION OF PRE-EXISTING CONDITION EXCLUSIONS.

    (a) Group Market.--Subject to section 6(a) of this Act, subpart 1 
of part A of title XXVII of the Public Health Service Act (42 U.S.C. 
300gg et seq.), as restored or revived pursuant to PPACA repeal 
legislation described in section 6(b) of this Act, is amended by 
striking section 2701 and inserting the following:

``SEC. 2701. PROHIBITION OF PRE-EXISTING CONDITION EXCLUSIONS.

    ``(a) In General.--A group health plan or a health insurance issuer 
offering group health insurance coverage may not impose any pre-
existing condition exclusion with respect to such plan or coverage.
    ``(b) Definitions.--For purposes of this section:
            ``(1) Pre-existing condition exclusion.--
                    ``(A) In general.--The term `pre-existing condition 
                exclusion' means, with respect to a group health plan 
                or health insurance coverage, a limitation or exclusion 
                of benefits relating to a condition based on the fact 
                that the condition was present before the date of 
                enrollment in such plan or for such coverage, whether 
                or not any medical advice, diagnosis, care, or 
                treatment was recommended or received before such date.
                    ``(B) Treatment of genetic information.--Genetic 
                information shall not be treated as a pre-existing 
                condition in the absence of a diagnosis of the 
                condition related to such information.
            ``(2) Date of enrollment.--The term `date of enrollment' 
        means, with respect to an individual covered under a group 
        health plan or health insurance coverage, the date of 
        enrollment of the individual in the plan or coverage or, if 
        earlier, the first day of the waiting period for such 
        enrollment.
            ``(3) Waiting period.--The term `waiting period' means, 
        with respect to a group health plan and an individual who is a 
        potential participant or beneficiary in the plan, the period 
        that must pass with respect to the individual before the 
        individual is eligible to be covered for benefits under the 
        terms of the plan.''.
    (b) Individual Market.--Subject to section 6(a) of this Act, 
subpart 1 of part B of title XXVII of the Public Health Service Act (42 
U.S.C. 300gg-41 et seq.), as restored or revived pursuant to PPACA 
repeal legislation described in section 6(b) of this Act, is amended by 
adding at the end the following:

``SEC. 2746. PROHIBITION OF PRE-EXISTING CONDITION EXCLUSIONS OR OTHER 
              DISCRIMINATION BASED ON HEALTH STATUS.

    ``The provisions of section 2701 shall apply to health insurance 
coverage offered to individuals by a health insurance issuer in the 
individual market in the same manner as it applies to health insurance 
coverage offered by a health insurance issuer in the group market.''.

SEC. 3. GUARANTEED AVAILABILITY OF COVERAGE.

    (a) Group Market.--Subject to section 6(a) of this Act, subpart 3 
of part A of title XXVII of the Public Health Service Act, as restored 
or revived pursuant to PPACA repeal legislation described in section 
6(b) of this Act, is amended by striking section 2711 (42 U.S.C. 300gg-
11) and inserting the following:

``SEC. 2711. GUARANTEED AVAILABILITY OF COVERAGE.

    ``(a) Guaranteed Issuance of Coverage in the Group Market.--Subject 
to subsection (b), each health insurance issuer that offers health 
insurance coverage in the group market in a State shall accept every 
employer and every individual in a group in the State that applies for 
such coverage.
    ``(b) Enrollment.--
            ``(1) Restriction.--A health insurance issuer described in 
        subsection (a) may restrict enrollment in coverage described in 
        such subsection to open or special enrollment periods.
            ``(2) Establishment.--A health insurance issuer described 
        in subsection (a) shall establish special enrollment periods 
        for qualifying events (as such term is defined in section 603 
        of the Employee Retirement Income Security Act of 1974).''.
    (b) Individual Market.--Subject to section 6(a) of this Act, 
subpart 1 of part B of title XXVII of the Public Health Service Act, as 
restored or revived pursuant to PPACA repeal legislation described in 
section 6(b) of this Act, is amended by striking section 2741 of such 
Act (42 U.S.C. 300gg-41) and inserting the following:

``SEC. 2741. GUARANTEED AVAILABILITY OF COVERAGE.

    ``The provisions of section 2711 shall apply to health insurance 
coverage offered to individuals by a health insurance issuer in the 
individual market in the same manner as such provisions apply to health 
insurance coverage offered to employers by a health insurance issuer in 
connection with health insurance coverage in the group market. For 
purposes of this section, the Secretary shall treat any reference of 
the word `employer' in such section as a reference to the term 
`individual'.''.

SEC. 4. PROHIBITING DISCRIMINATION AGAINST INDIVIDUAL PARTICIPANTS AND 
              BENEFICIARIES BASED ON HEALTH STATUS.

    (a) Group Market.--Subject to section 6(a) of this Act, section 
2702 of the Public Health Service Act, as restored or revived pursuant 
to PPACA repeal legislation described in section 6(b) of this Act, is 
amended to read as follows:

``SEC. 2702. PROHIBITING DISCRIMINATION AGAINST INDIVIDUAL PARTICIPANTS 
              AND BENEFICIARIES BASED ON HEALTH STATUS.

    ``(a) In General.--A group health plan and a health insurance 
issuer offering group health insurance coverage may not establish rules 
for eligibility (including continued eligibility) of any individual to 
enroll under the terms of the plan or coverage based on any of the 
following health status-related factors in relation to the individual 
or a dependent of the individual:
            ``(1) Health status.
            ``(2) Medical condition (including both physical and mental 
        illnesses).
            ``(3) Claims experience.
            ``(4) Receipt of health care.
            ``(5) Medical history.
            ``(6) Genetic information.
            ``(7) Evidence of insurability (including conditions 
        arising out of acts of domestic violence).
            ``(8) Disability.
            ``(9) Any other health status-related factor determined 
        appropriate by the Secretary.
    ``(b) In Premium Contributions.--
            ``(1) In general.--A group health plan, and a health 
        insurance issuer offering group health insurance coverage, may 
        not require any individual (as a condition of enrollment or 
        continued enrollment under the plan) to pay a premium or 
        contribution which is greater than such premium or contribution 
        for a similarly situated individual enrolled in the plan on the 
        basis of any health status-related factor in relation to the 
        individual or to an individual enrolled under the plan as a 
        dependent of the individual.
            ``(2) Construction.--Nothing in paragraph (1) shall be 
        construed--
                    ``(A) to restrict the amount that an employer or 
                individual may be charged for coverage under a group 
                health plan except as provided in paragraph (3); or
                    ``(B) to prevent a group health plan, and a health 
                insurance issuer offering group health insurance 
                coverage, from establishing premium discounts or 
                rebates or modifying otherwise applicable copayments or 
                deductibles in return for adherence to programs of 
                health promotion and disease prevention.
            ``(3) No group-based discrimination on basis of genetic 
        information.--
                    ``(A) In general.--For purposes of this section, a 
                group health plan, and health insurance issuer offering 
                group health insurance coverage, may not adjust premium 
                or contribution amounts for the group covered under 
                such plan on the basis of genetic information.
                    ``(B) Rule of construction.--Nothing in 
                subparagraph (A) or in paragraphs (1) and (2) of 
                subsection (d) shall be construed to limit the ability 
                of a health insurance issuer offering group health 
                insurance coverage to increase the premium for an 
                employer based on the manifestation of a disease or 
                disorder of an individual who is enrolled in the plan. 
                In such case, the manifestation of a disease or 
                disorder in one individual cannot also be used as 
                genetic information about other group members and to 
                further increase the premium for the employer.
    ``(c) Genetic Testing.--
            ``(1) Limitation on requesting or requiring genetic 
        testing.--A group health plan, and a health insurance issuer 
        offering health insurance coverage in connection with a group 
        health plan, shall not request or require an individual or a 
        family member of such individual to undergo a genetic test.
            ``(2) Rule of construction.--Paragraph (1) shall not be 
        construed to limit the authority of a health care professional 
        who is providing health care services to an individual to 
        request that such individual undergo a genetic test.
            ``(3) Rule of construction regarding payment.--
                    ``(A) In general.--Nothing in paragraph (1) shall 
                be construed to preclude a group health plan, or a 
                health insurance issuer offering health insurance 
                coverage in connection with a group health plan, from 
                obtaining and using the results of a genetic test in 
                making a determination regarding payment (as such term 
                is defined for the purposes of applying the regulations 
                promulgated by the Secretary under part C of title XI 
                of the Social Security Act and section 264 of the 
                Health Insurance Portability and Accountability Act of 
                1996, as may be revised from time to time) consistent 
                with subsection (a).
                    ``(B) Limitation.--For purposes of subparagraph 
                (A), a group health plan, or a health insurance issuer 
                offering health insurance coverage in connection with a 
                group health plan, may request only the minimum amount 
                of information necessary to accomplish the intended 
                purpose.
            ``(4) Research exception.--Notwithstanding paragraph (1), a 
        group health plan, or a health insurance issuer offering health 
        insurance coverage in connection with a group health plan, may 
        request, but not require, that a participant or beneficiary 
        undergo a genetic test if each of the following conditions is 
        met:
                    ``(A) The request is made pursuant to research that 
                complies with part 46 of title 45, Code of Federal 
                Regulations, or equivalent Federal regulations, and any 
                applicable State or local law or regulations for the 
                protection of human subjects in research.
                    ``(B) The plan or issuer clearly indicates to each 
                participant or beneficiary, or in the case of a minor 
                child, to the legal guardian of such beneficiary, to 
                whom the request is made that--
                            ``(i) compliance with the request is 
                        voluntary; and
                            ``(ii) non-compliance will have no effect 
                        on enrollment status or premium or contribution 
                        amounts.
                    ``(C) No genetic information collected or acquired 
                under this paragraph shall be used for underwriting 
                purposes.
                    ``(D) The plan or issuer notifies the Secretary in 
                writing that the plan or issuer is conducting 
                activities pursuant to the exception provided for under 
                this paragraph, including a description of the 
                activities conducted.
                    ``(E) The plan or issuer complies with such other 
                conditions as the Secretary may by regulation require 
                for activities conducted under this paragraph.
    ``(d) Prohibition on Collection of Genetic Information.--
            ``(1) In general.--A group health plan, and a health 
        insurance issuer offering health insurance coverage in 
        connection with a group health plan, shall not request, 
        require, or purchase genetic information for underwriting 
        purposes (as defined in section 2791).
            ``(2) Prohibition on collection of genetic information 
        prior to enrollment.--A group health plan, and a health 
        insurance issuer offering health insurance coverage in 
        connection with a group health plan, shall not request, 
        require, or purchase genetic information with respect to any 
        individual prior to such individual's enrollment under the plan 
        or coverage in connection with such enrollment.
            ``(3) Incidental collection.--If a group health plan, or a 
        health insurance issuer offering health insurance coverage in 
        connection with a group health plan, obtains genetic 
        information incidental to the requesting, requiring, or 
        purchasing of other information concerning any individual, such 
        request, requirement, or purchase shall not be considered a 
        violation of paragraph (2) if such request, requirement, or 
        purchase is not in violation of paragraph (1).
    ``(e) Genetic Information of a Fetus or Embryo.--Any reference in 
this part to genetic information concerning an individual or family 
member of an individual shall--
            ``(1) with respect to such an individual or family member 
        of an individual who is a pregnant woman, include genetic 
        information of any fetus carried by such pregnant woman; and
            ``(2) with respect to an individual or family member 
        utilizing an assisted reproductive technology, include genetic 
        information of any embryo legally held by the individual or 
        family member.
    ``(f) Programs of Health Promotion or Disease Prevention.--
            ``(1) General provisions.--
                    ``(A) General rule.--For purposes of subsection 
                (b)(2)(B), a program of health promotion or disease 
                prevention (referred to in this subsection as a 
                `wellness program') shall be a program offered by an 
                employer that is designed to promote health or prevent 
                disease that meets the applicable requirements of this 
                subsection.
                    ``(B) No conditions based on health status 
                factor.--If none of the conditions for obtaining a 
                premium discount or rebate or other reward for 
                participation in a wellness program is based on an 
                individual satisfying a standard that is related to a 
                health status factor, such wellness program shall not 
                violate this section if participation in the program is 
                made available to all similarly situated individuals 
                and the requirements of paragraph (2) are complied 
                with.
                    ``(C) Conditions based on health status factor.--If 
                any of the conditions for obtaining a premium discount 
                or rebate or other reward for participation in a 
                wellness program is based on an individual satisfying a 
                standard that is related to a health status factor, 
                such wellness program shall not violate this section if 
                the requirements of paragraph (3) are complied with.
            ``(2) Wellness programs not subject to requirements.--If 
        none of the conditions for obtaining a premium discount or 
        rebate or other reward under a wellness program as described in 
        paragraph (1)(B) are based on an individual satisfying a 
        standard that is related to a health status factor (or if such 
        a wellness program does not provide such a reward), the 
        wellness program shall not violate this section if 
        participation in the program is made available to all similarly 
        situated individuals. The following programs shall not have to 
        comply with the requirements of paragraph (3) if participation 
        in the program is made available to all similarly situated 
        individuals:
                    ``(A) A program that reimburses all or part of the 
                cost for memberships in a fitness center.
                    ``(B) A diagnostic testing program that provides a 
                reward for participation and does not base any part of 
                the reward on outcomes.
                    ``(C) A program that encourages preventive care 
                related to a health condition through the waiver of the 
                copayment or deductible requirement under group health 
                plan for the costs of certain items or services related 
                to a health condition (such as prenatal care or well-
                baby visits).
                    ``(D) A program that reimburses individuals for the 
                costs of smoking cessation programs without regard to 
                whether the individual quits smoking.
                    ``(E) A program that provides a reward to 
                individuals for attending a periodic health education 
                seminar.
            ``(3) Wellness programs subject to requirements.--If any of 
        the conditions for obtaining a premium discount, rebate, or 
        reward under a wellness program as described in paragraph 
        (1)(C) is based on an individual satisfying a standard that is 
        related to a health status factor, the wellness program shall 
        not violate this section if the following requirements are 
        complied with:
                    ``(A) The reward for the wellness program, together 
                with the reward for other wellness programs with 
                respect to the plan that requires satisfaction of a 
                standard related to a health status factor, shall not 
                exceed 30 percent of the cost of employee-only coverage 
                under the plan. If, in addition to employees or 
                individuals, any class of dependents (such as spouses 
                or spouses and dependent children) may participate 
                fully in the wellness program, such reward shall not 
                exceed 30 percent of the cost of the coverage in which 
                an employee or individual and any dependents are 
                enrolled. For purposes of this paragraph, the cost of 
                coverage shall be determined based on the total amount 
                of employer and employee contributions for the benefit 
                package under which the employee is (or the employee 
                and any dependents are) receiving coverage. A reward 
                may be in the form of a discount or rebate of a premium 
                or contribution, a waiver of all or part of a cost-
                sharing mechanism (such as deductibles, copayments, or 
                coinsurance), the absence of a surcharge, or the value 
                of a benefit that would otherwise not be provided under 
                the plan. The Secretaries of Labor, Health and Human 
                Services, and the Treasury may increase the reward 
                available under this subparagraph to up to 50 percent 
                of the cost of coverage if the Secretaries determine 
                that such an increase is appropriate.
                    ``(B) The wellness program shall be reasonably 
                designed to promote health or prevent disease. A 
                program complies with the preceding sentence if the 
                program has a reasonable chance of improving the health 
                of, or preventing disease in, participating individuals 
                and it is not overly burdensome, is not a subterfuge 
                for discriminating based on a health status factor, and 
                is not highly suspect in the method chosen to promote 
                health or prevent disease.
                    ``(C) The plan shall give individuals eligible for 
                the program the opportunity to qualify for the reward 
                under the program at least once each year.
                    ``(D) The full reward under the wellness program 
                shall be made available to all similarly situated 
                individuals. For such purpose, among other things:
                            ``(i) The reward is not available to all 
                        similarly situated individuals for a period 
                        unless the wellness program allows--
                                    ``(I) for a reasonable alternative 
                                standard (or waiver of the otherwise 
                                applicable standard) for obtaining the 
                                reward for any individual for whom, for 
                                that period, it is unreasonably 
                                difficult due to a medical condition to 
                                satisfy the otherwise applicable 
                                standard; and
                                    ``(II) for a reasonable alternative 
                                standard (or waiver of the otherwise 
                                applicable standard) for obtaining the 
                                reward for any individual for whom, for 
                                that period, it is medically 
                                inadvisable to attempt to satisfy the 
                                otherwise applicable standard.
                            ``(ii) If reasonable under the 
                        circumstances, the plan or issuer may seek 
                        verification, such as a statement from an 
                        individual's physician, that a health status 
                        factor makes it unreasonably difficult or 
                        medically inadvisable for the individual to 
                        satisfy or attempt to satisfy the otherwise 
                        applicable standard.
                    ``(E) The plan or issuer involved shall disclose in 
                all plan materials describing the terms of the wellness 
                program the availability of a reasonable alternative 
                standard (or the possibility of waiver of the otherwise 
                applicable standard) required under subparagraph (D). 
                If plan materials disclose that such a program is 
                available, without describing its terms, the disclosure 
                under this subparagraph shall not be required.
    ``(g) Existing Programs.--Nothing in this section shall prohibit a 
program of health promotion or disease prevention that was established 
prior to the date of enactment of this section and applied with all 
applicable regulations, and that is operating on such date, from 
continuing to be carried out for as long as such regulations remain in 
effect.
    ``(h) Regulations.--Nothing in this section shall be construed as 
prohibiting the Secretaries of Labor, Health and Human Services, or the 
Treasury from promulgating regulations in connection with this 
section.''.
    (b) Individual Market.--Subject to section 6(a) of this Act, 
subpart 1 of part B of title XXVII of the Public Health Service Act, as 
restored or revived pursuant to PPACA repeal legislation described in 
section 6(b) of this Act and amended by section 2(b), is further 
amended by adding at the end the following:

``SEC. 2747. PROHIBITING DISCRIMINATION AGAINST INDIVIDUAL PARTICIPANTS 
              AND BENEFICIARIES BASED ON HEALTH STATUS.

    ``The provisions of section 2702 (other than subsections (b)(2)(B) 
and (f) of such section) shall apply to health insurance coverage 
offered to individuals by a health insurance issuer in the individual 
market in the same manner as such provisions apply to health insurance 
coverage offered to employers by a health insurance issuer in 
connection with health insurance coverage in the group market.''.

SEC. 5. INCORPORATION INTO ERISA AND INTERNAL REVENUE CODE.

    (a) ERISA.--Subpart B of part 7 of subtitle A of title I of the 
Employee Retirement Income Security Act of 1974 (29 U.S.C. 1181 et 
seq.) is amended by adding at the end the following:

``SEC. 715. ADDITIONAL MARKET REFORMS.

    ``Sections 2701, 2702, and 2711 shall apply to group health plans, 
and health insurance issuers providing health insurance coverage in 
connection with group health plans, as if included in this subpart, and 
to the extent that any provision of this part conflicts with a 
provision of such a section with respect to group health plans, or 
health insurance issuers providing health insurance coverage in 
connection with group health plans, the provisions of such section 
shall apply.''.
    (b) IRC.--Subchapter B of chapter 100 of the Internal Revenue Code 
of 1986 is amended by adding at the end the following:

``SEC. 9815. ADDITIONAL MARKET REFORMS.

    ``Sections 2701, 2702, and 2711 shall apply to group health plans, 
and health insurance issuers providing health insurance coverage in 
connection with group health plans, as if included in this subchapter, 
and to the extent that any provision of this subchapter conflicts with 
a provision of such a section with respect to group health plans, or 
health insurance issuers providing health insurance coverage in 
connection with group health plans, the provisions of such section 
shall apply.''.

SEC. 6. EFFECTIVE DATE CONTINGENT ON REPEAL OF PPACA.

    (a) In General.--Sections 2, 3, 4, and 5 and the amendments made by 
such sections shall take effect upon the enactment of PPACA repeal 
legislation described in subsection (b) and such sections and 
amendments shall have no force or effect if such PPACA repeal 
legislation is not enacted.
    (b) PPACA Repeal Legislation Described.--For purposes of subsection 
(a), PPACA repeal legislation described in this subsection is 
legislation that--
            (1) repeals Public Law 111-148, and restores or revives the 
        provisions of law amended or repealed, respectively, by such 
        Act as if such Act had not been enacted and without further 
        amendment to such provisions of law; and
            (2) repeals title I and subtitle B of title II of the 
        Health Care and Education Reconciliation Act of 2010 (Public 
        Law 111-152), and restores or revives the provisions of law 
        amended or repealed, respectively, by such title or subtitle, 
        respectively, as if such title and subtitle had not been 
        enacted and without further amendment to such provisions of 
        law.
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