I 113th CONGRESS 1st Session H. R. 3165 IN THE HOUSE OF REPRESENTATIVES September 20, 2013 Mr. Latham introduced the following bill; which was referred to the Committee on Energy and Commerce , and in addition to the Committees on Ways and Means , Education and the Workforce , Natural Resources , the Judiciary , House Administration , Rules , and Appropriations , for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To repeal the Patient Protection and Affordable Care Act and to take meaningful steps to lower health care costs and increase access to health insurance coverage without raising taxes, cutting Medicare benefits for seniors, adding to the national deficit, intervening in the doctor-patient relationship, or instituting a government takeover of health care.

1. Short title; purpose; table of contents (a) Short title This Act may be cited as the Common Sense Health Reform Americans Actually Want Act . (b) Purpose The purpose of this Act is to take meaningful steps to lower health care costs and increase access to health insurance coverage (especially for individuals with preexisting conditions) without— (1) raising taxes; (2) cutting Medicare benefits for seniors; (3) adding to the national deficit; (4) intervening in the doctor-patient relationship; or (5) instituting a government takeover of health care. (c) Table of contents The table of contents of this Act is as follows: Sec. 1. Short title; purpose; table of contents. Sec. 2. Repeal of the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010. Division A—Ensuring coverage for individuals with preexisting conditions and multiple health care needs Sec. 101. Establish universal access programs to improve high risk pools and reinsurance markets. Sec. 102. No annual or lifetime spending caps. Sec. 103. Preventing unjust cancellation of insurance coverage. Division B—Reducing Health Care Premiums and the Number of Uninsured Americans Title I—Expanding Access and Lowering Costs for Small Businesses Subtitle A—Enhanced Marketplace Pools Sec. 201. Rules governing enhanced marketplace pools. Sec. 202. Cooperation between Federal and State authorities. Sec. 203. Effective date and transitional and other rules. Subtitle B—Market Relief Sec. 204. Market relief. Title II—Targeted Efforts to Expand Access Sec. 211. Extending coverage of dependents. Sec. 212. Prohibiting preexisting condition exclusions for enrollees under age 19. Sec. 213. Health plan finders. Title III—Expanding Choices by Allowing Americans to Buy Health Care Coverage Across State Lines Sec. 221. Interstate purchasing of health insurance. Title IV—Improving Health Savings Accounts Sec. 231. HSA funds for premiums for high deductible health plans. Sec. 232. Requiring greater coordination between HDHP administrators and HSA account administrators so that enrollees can enroll in both at the same time. Sec. 233. Special rule for certain medical expenses incurred before establishment of account. Title V—Tax–Related Health Incentives Sec. 241. SECA tax deduction for health insurance costs. Sec. 242. Deduction for qualified health insurance costs of individuals. Division C—Enacting Real Medical Liability Reform Sec. 301. Cap on non-economic damages against health care practitioners. Sec. 302. Cap on non-economic damages against health care institutions. Sec. 303. Cap, in wrongful death cases, on total damages against any single health care practitioner. Sec. 304. Limitation of insurer liability when insurer rejects certain settlement offers. Sec. 305. Mandatory jury instruction on cap on damages. Sec. 306. Determination of negligence; mandatory jury instruction. Sec. 307. Expert reports required to be served in civil actions. Sec. 308. Expert opinions relating to physicians may be provided only by actively practicing physicians. Sec. 309. Payment of future damages on periodic or accrual basis. Sec. 310. Unanimous jury required for punitive or exemplary damages. Sec. 311. Proportionate liability. Sec. 312. Defense-initiated settlement process. Sec. 313. Statute of limitations; statute of repose. Sec. 314. Limitation on liability for Good Samaritans providing emergency health care. Sec. 315. Definitions. Division D—Protecting the Doctor-Patient Relationship Sec. 401. Rule of construction. Sec. 402. Repeal of Federal Coordinating Council for Comparative Effectiveness Research. Division E—Incentivizing Wellness and Quality Improvements Sec. 501. Incentives for prevention and wellness programs. Division F—Protecting Taxpayers Sec. 601. Permanently prohibiting taxpayer funded abortions and ensuring conscience protections. Sec. 602. Improved enforcement of the Medicare and Medicaid secondary payer provisions. Sec. 603. Strengthen Medicare provider enrollment standards and safeguards. Sec. 604. Tracking banned providers across State lines. 2. Repeal of the Patient Protection and Affordable Care Act and the Health Care and Education Reconciliation Act of 2010 (a) Patient Protection and Affordable Care Act The Patient Protection and Affordable Care Act ( Public Law 111–148 ) is repealed and the provisions of law amended or repealed by such Act are restored or revived as if such Act had not been enacted. (b) Health Care and Education Reconciliation Act of 2010 The Health Care and Education Reconciliation Act of 2010 ( Public Law 111–152 ) is repealed and the provisions of law amended or repealed by such Act are restored or revived as if such Act had not been enacted. A Ensuring coverage for individuals with preexisting conditions and multiple health care needs 101. Establish universal access programs to improve high risk pools and reinsurance markets (a) State requirement (1) In general Not later than 90 days after the date of the enactment of this Act, each State shall— (A) subject to paragraph (3), operate a qualifying State high risk pool described in subsection (b)(1); and (B) subject to paragraph (3), apply to the operation of such a program from State funds an amount equivalent to the portion of State funds derived from State premium assessments (as defined by the Secretary) that are not otherwise used on State health care programs. (2) Relation to current qualified high risk pool program (A) States not operating a qualified high risk pool In the case of a State that is not operating a current section 2745 qualified high risk pool as of the date of the enactment of this Act, the State’s operation of a qualifying State high risk pool described in subsection (b)(1) shall be treated, for purposes of section 2745 of the Public Health Service Act, as the operation of a qualified high risk pool described in such section. (B) State operating a qualified high risk pool In the case of a State that is operating a current section 2745 qualified high risk pool as of the date of the enactment of this Act, as of the date that is 90 days after the date of the enactment of this Act, such a pool shall not be treated as a qualified high risk pool under section 2745 of the Public Health Service Act unless the pool is a qualifying State high risk pool described in subsection (b)(1). (3) Application of funds If the pool operated under paragraph (1)(A) is in strong fiscal health, as determined in accordance with standards established by the National Association of Insurance Commissioners and as approved by the State Insurance Commissioner involved, the requirement of paragraph (1)(B) shall be deemed to be met. (b) Qualifying State high risk pool (1) In general A qualifying State high risk pool described in this subsection means a current section 2745 qualified high risk pool that meets the following requirements: (A) The pool must be funded with a stable funding source. (B) The pool must eliminate any waiting lists so that all eligible residents who are seeking coverage through the pool should be allowed to receive coverage through the pool. (C) The pool must allow for coverage of individuals who, but for the 24-month disability waiting period under section 226(b) of the Social Security Act, would be eligible for Medicare during the period of such waiting period. (D) The pool must limit the pool premiums to no more than 150 percent of the average premium for applicable standard risk rates in that State. (E) The pool must conduct education and outreach initiatives so that residents and brokers understand that the pool is available to eligible residents. (F) The pool must provide coverage for preventive services and disease management for chronic diseases. (G) Subject to subparagraph (C), an individual may only be eligible for coverage through the pool if the individual has a pre-existing condition, as determined in a manner consistent with guidance ussed by the Secretary of Health and Human Services and— (i) was denied health insurance coverage in the individual market because of a pre-existing condition or health status; or (ii) was offered such coverage— (I) under terms that limit the coverage for such a pre-existing condition; or (II) at a premium rate that is above the premium rate for coverage through the pool pursuant to this section. (H) No pre-existing condition exclusion period may be imposed on coverage through the pool. (I) The pool shall not require an individual to be uninsured for any period as a condition of eligibility to receive coverage through the pool. (2) Verification of citizenship or alien qualification (A) In general Notwithstanding any other provision of law, only citizens and nationals of the United States shall be eligible to participate in a qualifying State high risk pool that receives funds under section 2745 of the Public Health Service Act or this section. (B) Condition of participation As a condition of a State receiving such funds, the Secretary shall require the State to certify, to the satisfaction of the Secretary, that such State requires all applicants for coverage in the qualifying State high risk pool to provide satisfactory documentation of citizenship or nationality in a manner consistent with section 1903(x) of the Social Security Act. (C) Records The Secretary shall keep sufficient records such that a determination of citizenship or nationality only has to be made once for any individual under this paragraph. (3) Relation to section 2745 As of January 1, 2012, a pool shall not qualify as qualified high risk pool under section 2745 of the Public Health Service Act unless the pool is a qualifying State high risk pool described in paragraph (1). (c) Waivers In order to accommodate new and innovative programs, the Secretary may waive such requirements of this section for qualifying State high risk pools as the Secretary deems appropriate. (d) Funding In addition to any other amounts appropriated, there is appropriated to carry out section 2745 of the Public Health Service Act (including through a pool described in subsection (a)(1))— (1) $15,000,000,000 for the period of fiscal years 2011 through 2021; and (2) an additional $10,000,000,000 for the period of fiscal years 2017 through 2021. (e) Definitions In this section: (1) Health insurance coverage; health insurance issuer The terms health insurance coverage and health insurance issuer have the meanings given such terms in section 2791 of the Public Health Service Act. (2) Current section 2745 qualified high risk pool The term current section 2745 qualified high risk pool has the meaning given the term qualified high risk pool under section 2745(g) of the Public Health Service Act as in effect as of the date of the enactment of this Act. (3) Secretary The term Secretary means Secretary of Health and Human Services. (4) Standard risk rate The term standard risk rate means a rate that— (A) is determined under the State high risk pool by considering the premium rates charged by other health insurance issuers offering health insurance coverage to individuals in the insurance market served; (B) is established using reasonable actuarial techniques; and (C) reflects anticipated claims experience and expenses for the coverage involved. (5) State The term State means any of the 50 States or the District of Columbia. 102. No annual or lifetime spending caps Notwithstanding any other provision of law, a health insurance issuer (including an entity licensed to sell insurance with respect to a State or group health plan) may not apply an annual or lifetime aggregate spending cap on any health insurance coverage or plan offered by such issuer. 103. Preventing unjust cancellation of insurance coverage (a) Clarification regarding application of guaranteed renewability of individual health insurance coverage Section 2742 of the Public Health Service Act ( 42 U.S.C. 300gg–42 ), as restored by section 2, is amended— (1) in its heading, by inserting , continuation in force, including prohibition of rescission, after Guaranteed renewability ; (2) in subsection (a), by inserting , including without rescission, after continue in force ; and (3) in subsection (b)(2), by inserting before the period at the end the following: , including intentional concealment of material facts regarding a health condition related to the condition for which coverage is being claimed . (b) Opportunity for independent, external third party review in certain cases Subpart 1 of part B of title XXVII of the Public Health Service Act, as restored by section 2, is amended by adding at the end the following new section: 2746. Opportunity for independent, external third party review in certain cases (a) Notice and review right If a health insurance issuer determines to nonrenew or not continue in force, including rescind, health insurance coverage for an individual in the individual market on the basis described in section 2742(b)(2) before such nonrenewal, discontinuation, or rescission, may take effect the issuer shall provide the individual with notice of such proposed nonrenewal, discontinuation, or rescission and an opportunity for a review of such determination by an independent, external third party under procedures specified by the Secretary. (b) Independent determination If the individual requests such review by an independent, external third party of a nonrenewal, discontinuation, or rescission of health insurance coverage, the coverage shall remain in effect until such third party determines that the coverage may be nonrenewed, discontinued, or rescinded under section 2742(b)(2). . (c) Effective date The amendments made by this section shall apply after the date of the enactment of this Act with respect to health insurance coverage issued before, on, or after such date. B Reducing Health Care Premiums and the Number of Uninsured Americans I Expanding Access and Lowering Costs for Small Businesses A Enhanced Marketplace Pools 201. Rules governing enhanced marketplace pools (a) In general Subtitle B of title I of the Employee Retirement Income Security Act of 1974 , as restored by section 2, is amended by adding after part 7 the following new part: 8 Rules governing enhanced marketplace pools 801. Small business health plans (a) In general For purposes of this part, the term small business health plan means a fully insured group health plan whose sponsor is (or is deemed under this part to be) described in subsection (b). (b) Sponsorship The sponsor of a group health plan is described in this subsection if such sponsor— (1) is organized and maintained in good faith, with a constitution and bylaws specifically stating its purpose and providing for periodic meetings on at least an annual basis, as a bona fide trade association, a bona fide industry association (including a rural electric cooperative association or a rural telephone cooperative association), a bona fide professional association, or a bona fide chamber of commerce (or similar bona fide business association, including a corporation or similar organization that operates on a cooperative basis (within the meaning of section 1381 of the Internal Revenue Code of 1986)), for substantial purposes other than that of obtaining medical care; (2) is established as a permanent entity which receives the active support of its members and requires for membership payment on a periodic basis of dues or payments necessary to maintain eligibility for membership; (3) does not condition membership, such dues or payments, or coverage under the plan on the basis of health status-related factors with respect to the employees of its members (or affiliated members), or the dependents of such employees, and does not condition such dues or payments on the basis of group health plan participation; and (4) does not condition membership on the basis of a minimum group size. Any sponsor consisting of an association of entities which meet the requirements of paragraphs (1), (2), (3), and (4) shall be deemed to be a sponsor described in this subsection. 802. Alternative Market Pooling Organizations (a) In general The Secretary, not later than 1 year after the date of enactment of this part, shall promulgate regulations that apply the rules and standards of this part, as necessary, to circumstances in which a pooling entity other (hereinafter Alternative Market Pooling Organizations ) is not made up principally of employers and their employees, or not a professional organization or such small business health plan entity identified in section 801. (b) Adaption of standards In developing and promulgating regulations pursuant to subsection (a), the Secretary, in consultation with the Secretary of Health and Human Services, small business health plans, small and large employers, large and small insurance issuers, consumer representatives, and state insurance commissioners, shall— (1) adapt the standards of this part, to the maximum degree practicable, to assure balanced and comparable oversight standards for both small business health plans and alternative market pooling organizations; (2) permit the participation as alternative market pooling organizations unions, churches and other faith-based organizations, or other organizations composed of individuals and groups which may have little or no association with employment, provided however, that such alternative market pooling organizations meet, and continue meeting on an ongoing basis, to satisfy standards, rules, and requirements materially equivalent to those set forth in this part with respect to small business health plans; (3) conduct periodic verification of such compliance by alternative market pooling organizations, in consultation with the Secretary of Health and Human Services and the National Association of Insurance Commissioners, except that such periodic verification shall not materially impede market entry or participation as pooling entities comparable to that of small business health plans; (4) assure that consistent, clear, and regularly monitored standards are applied with respect to alternative market pooling organizations to avert material risk-selection within or among the composition of such organizations; (5) the expedited and deemed certification procedures provided in section 805(d) shall not apply to alternative market pooling organizations until sooner of the promulgation of regulations under this subsection or the expiration of one year following enactment of this Act; and (6) make such other appropriate adjustments to the requirements of this part as the Secretary may reasonably deem appropriate to fit the circumstances of an individual alternative market pooling organization or category of such organization, including but not limited to the application of the membership payment requirements of section 801(b)(2) to alternative market pooling organizations composed primarily of church- or faith-based membership. 803. Certification of small business health plans (a) In general Not later than 6 months after the date of enactment of this part, the applicable authority shall prescribe by interim final rule a procedure under which the applicable authority shall certify small business health plans which apply for certification as meeting the requirements of this part. (b) Requirements applicable to certified plans A small business health plan with respect to which certification under this part is in effect shall meet the applicable requirements of this part, effective on the date of certification (or, if later, on the date on which the plan is to commence operations). (c) Requirements for continued certification The applicable authority may provide by regulation for continued certification of small business health plans under this part. Such regulation shall provide for the revocation of a certification if the applicable authority finds that the small business health plan involved is failing to comply with the requirements of this part. (d) Expedited and deemed certification (1) In general If the Secretary fails to act on an application for certification under this section within 90 days of receipt of such application, the applying small business health plan shall be deemed certified until such time as the Secretary may deny for cause the application for certification. (2) Civil penalty The Secretary may assess a civil penalty against the board of trustees and plan sponsor (jointly and severally) of a small business health plan that is deemed certified under paragraph (1) of up to $500,000 in the event the Secretary determines that the application for certification of such small business health plan was willfully or with gross negligence incomplete or inaccurate. 804. Requirements relating to sponsors and boards of trustees (a) Sponsor The requirements of this subsection are met with respect to a small business health plan if the sponsor has met (or is deemed under this part to have met) the requirements of section 801(b) for a continuous period of not less than 3 years ending with the date of the application for certification under this part. (b) Board of trustees The requirements of this subsection are met with respect to a small business health plan if the following requirements are met: (1) Fiscal control The plan is operated, pursuant to a plan document, by a board of trustees which pursuant to a trust agreement has complete fiscal control over the plan and which is responsible for all operations of the plan. (2) Rules of operation and financial controls The board of trustees has in effect rules of operation and financial controls, based on a 3-year plan of operation, adequate to carry out the terms of the plan and to meet all requirements of this title applicable to the plan. (3) Rules governing relationship to participating employers and to contractors (A) Board membership (i) In general Except as provided in clauses (ii) and (iii), the members of the board of trustees are individuals selected from individuals who are the owners, officers, directors, or employees of the participating employers or who are partners in the participating employers and actively participate in the business. (ii) Limitation (I) General rule Except as provided in subclauses (II) and (III), no such member is an owner, officer, director, or employee of, or partner in, a contract administrator or other service provider to the plan. (II) Limited exception for providers of services solely on behalf of the sponsor Officers or employees of a sponsor which is a service provider (other than a contract administrator) to the plan may be members of the board if they constitute not more than 25 percent of the membership of the board and they do not provide services to the plan other than on behalf of the sponsor. (III) Treatment of providers of medical care In the case of a sponsor which is an association whose membership consists primarily of providers of medical care, subclause (I) shall not apply in the case of any service provider described in subclause (I) who is a provider of medical care under the plan. (iii) Certain plans excluded Clause (i) shall not apply to a small business health plan which is in existence on the date of the enactment of this part. (B) Sole authority The board has sole authority under the plan to approve applications for participation in the plan and to contract with insurers. (c) Treatment of franchises In the case of a group health plan which is established and maintained by a franchiser for a franchisor or for its franchisees— (1) the requirements of subsection (a) and section 801(a) shall be deemed met if such requirements would otherwise be met if the franchisor were deemed to be the sponsor referred to in section 801(b) and each franchisee were deemed to be a member (of the sponsor) referred to in section 801(b); and (2) the requirements of section 804(a)(1) shall be deemed met. For purposes of this subsection the terms franchisor and franchisee shall have the meanings given such terms for purposes of sections 436.2(a) through 436.2(c) of title 16, Code of Federal Regulations (including any such amendments to such regulation after the date of enactment of this part). 805. Participation and coverage requirements (a) Covered employers and individuals The requirements of this subsection are met with respect to a small business health plan if, under the terms of the plan— (1) each participating employer must be— (A) a member of the sponsor; (B) the sponsor; or (C) an affiliated member of the sponsor, except that, in the case of a sponsor which is a professional association or other individual-based association, if at least one of the officers, directors, or employees of an employer, or at least one of the individuals who are partners in an employer and who actively participates in the business, is a member or such an affiliated member of the sponsor, participating employers may also include such employer; and (2) all individuals commencing coverage under the plan after certification under this part must be— (A) active or retired owners (including self-employed individuals), officers, directors, or employees of, or partners in, participating employers; or (B) the dependents of individuals described in subparagraph (A). (b) Individual market unaffected The requirements of this subsection are met with respect to a small business health plan if, under the terms of the plan, no participating employer may provide health insurance coverage in the individual market for any employee not covered under the plan which is similar to the coverage contemporaneously provided to employees of the employer under the plan, if such exclusion of the employee from coverage under the plan is based on a health status-related factor with respect to the employee and such employee would, but for such exclusion on such basis, be eligible for coverage under the plan. (c) Prohibition of discrimination against employers and employees eligible To participate The requirements of this subsection are met with respect to a small business health plan if— (1) under the terms of the plan, all employers meeting the preceding requirements of this section are eligible to qualify as participating employers for all geographically available coverage options, unless, in the case of any such employer, participation or contribution requirements of the type referred to in section 2711 of the Public Health Service Act are not met; (2) information regarding all coverage options available under the plan is made readily available to any employer eligible to participate; and (3) the applicable requirements of sections 701, 702, and 703 are met with respect to the plan. 806. Other requirements relating to plan documents, contribution rates, and benefit options (a) In general The requirements of this section are met with respect to a small business health plan if the following requirements are met: (1) Contents of governing instruments (A) In general The instruments governing the plan include a written instrument, meeting the requirements of an instrument required under section 402(a)(1), which— (i) provides that the board of trustees serves as the named fiduciary required for plans under section 402(a)(1) and serves in the capacity of a plan administrator (referred to in section 3(16)(A)); and (ii) provides that the sponsor of the plan is to serve as plan sponsor (referred to in section 3(16)(B)). (B) Description of material provisions The terms of the health insurance coverage (including the terms of any individual certificates that may be offered to individuals in connection with such coverage) describe the material benefit and rating, and other provisions set forth in this section and such material provisions are included in the summary plan description. (2) Contribution rates must be nondiscriminatory (A) In general The contribution rates for any participating small employer shall not vary on the basis of any health status-related factor in relation to employees of such employer or their beneficiaries and shall not vary on the basis of the type of business or industry in which such employer is engaged, subject to subparagraph (B) and the terms of this title. (B) Effect of title Nothing in this title or any other provision of law shall be construed to preclude a health insurance issuer offering health insurance coverage in connection with a small business health plan that meets the requirements of this part, and at the request of such small business health plan, from— (i) setting contribution rates for the small business health plan based on the claims experience of the small business health plan so long as any variation in such rates for participating small employers complies with the requirements of clause (ii), except that small business health plans shall not be subject, in non-adopting states, to subparagraphs (A)(ii) and (C) of section 2912(a)(2) of the Public Health Service Act, and in adopting states, to any State law that would have the effect of imposing requirements as outlined in such subparagraphs (A)(ii) and (C); or (ii) varying contribution rates for participating small employers in a small business health plan in a State to the extent that such rates could vary using the same methodology employed in such State for regulating small group premium rates, subject to the terms of part I of subtitle A of title XXXI of the Public Health Service Act (relating to rating requirements), as added by subtitle B of title II of the Health Security for All Americans Act of 2010. (3) Exceptions regarding self-employed and large employers (A) Self-employed (i) In general Small business health plans with participating employers who are self-employed individuals (and their dependents) shall enroll such self-employed participating employers in accordance with rating rules that do not violate the rating rules for self-employed individuals in the State in which such self-employed participating employers are located. (ii) Guarantee issue Small business health plans with participating employers who are self-employed individuals (and their dependents) may decline to guarantee issue to such participating employers in States in which guarantee issue is not otherwise required for the self-employed in that State. (B) Large employers Small business health plans with participating employers that are larger than small employers (as defined in section 808(a)(10)) shall enroll such large participating employers in accordance with rating rules that do not violate the rating rules for large employers in the State in which such large participating employers are located. (4) Regulatory requirements Such other requirements as the applicable authority determines are necessary to carry out the purposes of this part, which shall be prescribed by the applicable authority by regulation. (b) Ability of small business health plans To design benefit options Nothing in this part or any provision of State law (as defined in section 514(c)(1)) shall be construed to preclude a small business health plan or a health insurance issuer offering health insurance coverage in connection with a small business health plan from exercising its sole discretion in selecting the specific benefits and services consisting of medical care to be included as benefits under such plan or coverage, except that such benefits and services must meet the terms and specifications of part II of subtitle A of title XXXI of the Public Health Service Act (relating to lower cost plans), as added by subtitle B of title II of the Health Security for All Americans Act of 2010. (c) Domicile and non-Domicile States (1) Domicile state Coverage shall be issued to a small business health plan in the State in which the sponsor's principal place of business is located. (2) Non-domicile states With respect to a State (other than the domicile State) in which participating employers of a small business health plan are located but in which the insurer of the small business health plan in the domicile State is not yet licensed, the following shall apply: (A) Temporary preemption If, upon the expiration of the 90-day period following the submission of a licensure application by such insurer (that includes a certified copy of an approved licensure application as submitted by such insurer in the domicile State) to such State, such State has not approved or denied such application, such State's health insurance licensure laws shall be temporarily preempted and the insurer shall be permitted to operate in such State, subject to the following terms: (i) Application of non-domicile State law Except with respect to licensure and with respect to the terms of subtitle A of title XXXI of the Public Health Service Act (relating to rating and benefits as added by subtitle B of title II of the Health Security for All Americans Act of 2010), the laws and authority of the non-domicile State shall remain in full force and effect. (ii) Revocation of preemption The preemption of a non-domicile State's health insurance licensure laws pursuant to this subparagraph, shall be terminated upon the occurrence of either of the following: (I) Approval or denial of application The approval of denial of an insurer's licensure application, following the laws and regulations of the non-domicile State with respect to licensure. (II) Determination of material violation A determination by a non-domicile State that an insurer operating in a non-domicile State pursuant to the preemption provided for in this subparagraph is in material violation of the insurance laws (other than licensure and with respect to the terms of subtitle A of title XXXI of the Public Health Service Act (relating to rating and benefits added by subtitle B of title II of the Health Security for All Americans Act of 2010)) of such State. (B) No prohibition on promotion Nothing in this paragraph shall be construed to prohibit a small business health plan or an insurer from promoting coverage prior to the expiration of the 90-day period provided for in subparagraph (A), except that no enrollment or collection of contributions shall occur before the expiration of such 90-day period. (C) licensure Except with respect to the application of the temporary preemption provision of this paragraph, nothing in this part shall be construed to limit the requirement that insurers issuing coverage to small business health plans shall be licensed in each State in which the small business health plans operate. (D) Servicing by licensed insurers Notwithstanding subparagraph (C), the requirements of this subsection may also be satisfied if the participating employers of a small business health plan are serviced by a licensed insurer in that State, even where such insurer is not the insurer of such small business health plan in the State in which such small business health plan is domiciled. 807. Requirements for application and related requirements (a) Filing fee Under the procedure prescribed pursuant to section 802(a), a small business health plan shall pay to the applicable authority at the time of filing an application for certification under this part a filing fee in the amount of $5,000, which shall be available in the case of the Secretary, to the extent provided in appropriation Acts, for the sole purpose of administering the certification procedures applicable with respect to small business health plans. (b) Information To be included in application for certification An application for certification under this part meets the requirements of this section only if it includes, in a manner and form which shall be prescribed by the applicable authority by regulation, at least the following information: (1) Identifying information The names and addresses of— (A) the sponsor; and (B) the members of the board of trustees of the plan. (2) States in which plan intends to do business The States in which participants and beneficiaries under the plan are to be located and the number of them expected to be located in each such State. (3) Bonding requirements Evidence provided by the board of trustees that the bonding requirements of section 412 will be met as of the date of the application or (if later) commencement of operations. (4) Plan documents A copy of the documents governing the plan (including any bylaws and trust agreements), the summary plan description, and other material describing the benefits that will be provided to participants and beneficiaries under the plan. (5) Agreements with service providers A copy of any agreements between the plan, health insurance issuer, and contract administrators and other service providers. (c) Filing notice of certification with States A certification granted under this part to a small business health plan shall not be effective unless written notice of such certification is filed with the applicable State authority of each State in which the small business health plans operate. (d) Notice of material changes In the case of any small business health plan certified under this part, descriptions of material changes in any information which was required to be submitted with the application for the certification under this part shall be filed in such form and manner as shall be prescribed by the applicable authority by regulation. The applicable authority may require by regulation prior notice of material changes with respect to specified matters which might serve as the basis for suspension or revocation of the certification. 808. Notice requirements for voluntary termination A small business health plan which is or has been certified under this part may terminate (upon or at any time after cessation of accruals in benefit liabilities) only if the board of trustees, not less than 60 days before the proposed termination date— (1) provides to the participants and beneficiaries a written notice of intent to terminate stating that such termination is intended and the proposed termination date; (2) develops a plan for winding up the affairs of the plan in connection with such termination in a manner which will result in timely payment of all benefits for which the plan is obligated; and (3) submits such plan in writing to the applicable authority. Actions required under this section shall be taken in such form and manner as may be prescribed by the applicable authority by regulation. 809. Implementation and application authority by Secretary The Secretary shall, through promulgation and implementation of such regulations as the Secretary may reasonably determine necessary or appropriate, and in consultation with a balanced spectrum of effected entities and persons, modify the implementation and application of this part to accommodate with minimum disruption such changes to State or Federal law provided in this part and the (and the amendments made by such Act) or in regulations issued thereto. 810. Definitions and rules of construction (a) Definitions For purposes of this part— (1) Affiliated member The term affiliated member means, in connection with a sponsor— (A) a person who is otherwise eligible to be a member of the sponsor but who elects an affiliated status with the sponsor, or (B) in the case of a sponsor with members which consist of associations, a person who is a member or employee of any such association and elects an affiliated status with the sponsor. (2) Applicable authority The term applicable authority means the Secretary of Labor, except that, in connection with any exercise of the Secretary's authority with respect to which the Secretary is required under section 506(d) to consult with a State, such term means the Secretary, in consultation with such State. (3) Applicable State authority The term applicable State authority means, with respect to a health insurance issuer in a State, the State insurance commissioner or official or officials designated by the State to enforce the requirements of title XXVII of the Public Health Service Act for the State involved with respect to such issuer. (4) Group health plan The term group health plan has the meaning provided in section 733(a)(1) (after applying subsection (b) of this section). (5) Health insurance coverage The term health insurance coverage has the meaning provided in section 733(b)(1), except that such term shall not include excepted benefits (as defined in section 733(c)). (6) Health insurance issuer The term health insurance issuer has the meaning provided in section 733(b)(2). (7) Individual market (A) In general The term individual market means the market for health insurance coverage offered to individuals other than in connection with a group health plan. (B) Treatment of very small groups (i) In general Subject to clause (ii), such term includes coverage offered in connection with a group health plan that has fewer than 2 participants as current employees or participants described in section 732(d)(3) on the first day of the plan year. (ii) State exception Clause (i) shall not apply in the case of health insurance coverage offered in a State if such State regulates the coverage described in such clause in the same manner and to the same extent as coverage in the small group market (as defined in section 2791(e)(5) of the Public Health Service Act ) is regulated by such State. (8) Medical care The term medical care has the meaning provided in section 733(a)(2). (9) Participating employer The term participating employer means, in connection with a small business health plan, any employer, if any individual who is an employee of such employer, a partner in such employer, or a self-employed individual who is such employer (or any dependent, as defined under the terms of the plan, of such individual) is or was covered under such plan in connection with the status of such individual as such an employee, partner, or self-employed individual in relation to the plan. (10) Small employer The term small employer means, in connection with a group health plan with respect to a plan year, a small employer as defined in section 2791(e)(4). (11) Trade association and professional association The terms trade association and professional association mean an entity that meets the requirements of section 1.501(c)(6)–1 of title 26, Code of Federal Regulations (as in effect on the date of enactment of this Act). (b) Rule of construction For purposes of determining whether a plan, fund, or program is an employee welfare benefit plan which is a small business health plan, and for purposes of applying this title in connection with such plan, fund, or program so determined to be such an employee welfare benefit plan— (1) in the case of a partnership, the term employer (as defined in section 3(5)) includes the partnership in relation to the partners, and the term employee (as defined in section 3(6)) includes any partner in relation to the partnership; and (2) in the case of a self-employed individual, the term employer (as defined in section 3(5)) and the term employee (as defined in section 3(6)) shall include such individual. (c) Renewal Notwithstanding any provision of law to the contrary, a participating employer in a small business health plan shall not be deemed to be a plan sponsor in applying requirements relating to coverage renewal. (d) Health savings accounts Nothing in this part shall be construed to create any mandates for coverage of benefits for HSA-qualified health plans that would require reimbursements in violation of section 223(c)(2) of the Internal Revenue Code of 1986. . (b) Conforming amendments to preemption rules (1) Section 514(b)(6) of such Act ( 29 U.S.C. 1144(b)(6) ), as restored by section 2, is amended by adding at the end the following new subparagraph: (E) The preceding subparagraphs of this paragraph do not apply with respect to any State law in the case of a small business health plan which is certified under part 8. . (2) Section 514 of such Act ( 29 U.S.C. 1144 ), as restored by section 2, is amended— (A) in subsection (b)(4), by striking Subsection (a) and inserting Subsections (a) and (d) ; (B) in subsection (b)(5), by striking subsection (a) in subparagraph (A) and inserting subsection (a) of this section and subsections (a)(2)(B) and (b) of section 805 , and by striking subsection (a) in subparagraph (B) and inserting subsection (a) of this section or subsection (a)(2)(B) or (b) of section 805 ; (C) by redesignating subsection (d) as subsection (e); and (D) by inserting after subsection (c) the following new subsection: (d) (1) Except as provided in subsection (b)(4), the provisions of this title shall supersede any and all State laws insofar as they may now or hereafter preclude a health insurance issuer from offering health insurance coverage in connection with a small business health plan which is certified under part 8. (2) In any case in which health insurance coverage of any policy type is offered under a small business health plan certified under part 8 to a participating employer operating in such State, the provisions of this title shall supersede any and all laws of such State insofar as they may establish rating and benefit requirements that would otherwise apply to such coverage, provided the requirements of subtitle A of title XXXI of the Public Health Service Act (as added by title II of the Health Security for All Americans Act of 2010) (concerning health plan rating and benefits) are met. . (c) Plan sponsor Section 3(16)(B) of such Act ( 29 U.S.C. 102(16)(B) ), as restored by section 2, is amended by adding at the end the following new sentence: Such term also includes a person serving as the sponsor of a small business health plan under part 8. . (d) Savings clause Section 731(c) of such Act, as restored by section 2, is amended by inserting or part 8 after this part . (e) Clerical amendment The table of contents in section 1 of the Employee Retirement Income Security Act of 1974 , as restored by section 2, is amended by inserting after the item relating to section 734 the following new items: Part 8—Rules governing small business health plans 801. Small business health plans. 802. Alternative market pooling organizations. 803. Certification of small business health plans. 804. Requirements relating to sponsors and boards of trustees. 805. Participation and coverage requirements. 806. Other requirements relating to plan documents, contribution rates, and benefit options. 807. Requirements for application and related requirements. 808. Notice requirements for voluntary termination. 809. Implementation and application authority by Secretary. 810. Definitions and rules of construction. . 202. Cooperation between Federal and State authorities Section 506 of the Employee Retirement Income Security Act of 1974 ( 29 U.S.C. 1136 ), as restored by section 2, is amended by adding at the end the following new subsection: (d) Consultation with States with respect to small business health plans (1) Agreements with States The Secretary shall consult with the State recognized under paragraph (2) with respect to a small business health plan regarding the exercise of— (A) the Secretary’s authority under sections 502 and 504 to enforce the requirements for certification under part 8; and (B) the Secretary’s authority to certify small business health plans under part 8 in accordance with regulations of the Secretary applicable to certification under part 8. (2) Recognition of domicile State In carrying out paragraph (1), the Secretary shall ensure that only one State will be recognized, with respect to any particular small business health plan, as the State with which consultation is required. In carrying out this paragraph such State shall be the domicile State, as defined in section 805(c). . 203. Effective date and transitional and other rules (a) Effective date The amendments made by this subtitle shall take effect 12 months after the date of the enactment of this Act. The Secretary of Labor shall first issue all regulations necessary to carry out the amendments made by this subtitle within 6 months after the date of the enactment of this Act. (b) Treatment of certain existing health benefits programs (1) In general In any case in which, as of the date of the enactment of this Act, an arrangement is maintained in a State for the purpose of providing benefits consisting of medical care for the employees and beneficiaries of its participating employers, at least 200 participating employers make contributions to such arrangement, such arrangement has been in existence for at least 10 years, and such arrangement is licensed under the laws of one or more States to provide such benefits to its participating employers, upon the filing with the applicable authority (as defined in section 808(a)(2) of the Employee Retirement Income Security Act of 1974 (as amended by this subtitle)) by the arrangement of an application for certification of the arrangement under part 8 of subtitle B of title I of such Act— (A) such arrangement shall be deemed to be a group health plan for purposes of title I of such Act; (B) the requirements of sections 801(a) and 803(a) of the Employee Retirement Income Security Act of 1974 shall be deemed met with respect to such arrangement; (C) the requirements of section 803(b) of such Act shall be deemed met, if the arrangement is operated by a board of trustees which has control over the arrangement; (D) the requirements of section 804(a) of such Act shall be deemed met with respect to such arrangement; and (E) the arrangement may be certified by any applicable authority with respect to its operations in any State only if it operates in such State on the date of certification. The provisions of this subsection shall cease to apply with respect to any such arrangement at such time after the date of the enactment of this Act as the applicable requirements of this subsection are not met with respect to such arrangement or at such time that the arrangement provides coverage to participants and beneficiaries in any State other than the States in which coverage is provided on such date of enactment. (2) Definitions For purposes of this subsection, the terms group health plan , medical care , and participating employer shall have the meanings provided in section 808 of the Employee Retirement Income Security Act of 1974 , except that the reference in paragraph (7) of such section to an small business health plan shall be deemed a reference to an arrangement referred to in this subsection. B Market Relief 204. Market relief The Public Health Service Act ( 42 U.S.C. 201 et seq. ), as restored by section 2, is amended by inserting after title XXX the following: XXXI Health care insurance marketplace modernization 3101. General insurance definitions In this title, the terms health insurance coverage , health insurance issuer , group health plan , and individual health insurance shall have the meanings given such terms in section 2791. 3102. Implementation and application authority by Secretary The Secretary shall, through promulgation and implementation of such regulations as the Secretary may reasonably determine necessary or appropriate, and in consultation with a balanced spectrum of effected entities and persons, modify the implementation and application of this title to accommodate with minimum disruption such changes to State or Federal law provided in this title and the (and the amendments made by such Act) or in regulations issued thereto. A Market relief I Rating requirements 3111. Definitions In this part: (1) Adopting state The term adopting State means a State that, with respect to the small group market, has enacted small group rating rules that meet the minimum standards set forth in section 3112(a)(1) or, as applicable, transitional small group rating rules set forth in section 3112(b). (2) Applicable State authority The term applicable State authority means, with respect to a health insurance issuer in a State, the State insurance commissioner or official or officials designated by the State to enforce the insurance laws of such State. (3) Base premium rate The term base premium rate means, for each class of business with respect to a rating period, the lowest premium rate charged or that could have been charged under a rating system for that class of business by the small employer carrier to small employers with similar case characteristics for health benefit plans with the same or similar coverage. (4) Eligible insurer The term eligible insurer means a health insurance issuer that is licensed in a State and that— (A) notifies the Secretary, not later than 30 days prior to the offering of coverage described in this subparagraph, that the issuer intends to offer health insurance coverage consistent with the Model Small Group Rating Rules or, as applicable, transitional small group rating rules in a State; (B) notifies the insurance department of a nonadopting State (or other State agency), not later than 30 days prior to the offering of coverage described in this subparagraph, that the issuer intends to offer small group health insurance coverage in that State consistent with the Model Small Group Rating Rules, and provides with such notice a copy of any insurance policy that it intends to offer in the State, its most recent annual and quarterly financial reports, and any other information required to be filed with the insurance department of the State (or other State agency); and (C) includes in the terms of the health insurance coverage offered in nonadopting States (including in the terms of any individual certificates that may be offered to individuals in connection with such group health coverage) and filed with the State pursuant to subparagraph (B), a description in the insurer's contract of the Model Small Group Rating Rules and an affirmation that such Rules are included in the terms of such contract. (5) Health insurance coverage The term health insurance coverage means any coverage issued in the small group health insurance market, except that such term shall not include excepted benefits (as defined in section 2791(c)). (6) Index rate The term index rate means for each class of business with respect to the rating period for small employers with similar case characteristics, the arithmetic average of the applicable base premium rate and the corresponding highest premium rate. (7) Model Small Group Rating Rules The term Model Small Group Rating Rules means the rules set forth in section 3112(a)(2). (8) Nonadopting state The term nonadopting State means a State that is not an adopting State. (9) Small group insurance market The term small group insurance market shall have the meaning given the term small group market in section 2791(e)(5). (10) State law The term State law means all laws, decisions, rules, regulations, or other State actions (including actions by a State agency) having the effect of law, of any State. (11) Variation limits (A) Composite variation limit (i) In general The term composite variation limit means the total variation in premium rates charged by a health insurance issuer in the small group market as permitted under applicable State law based on the following factors or case characteristics: (I) Age. (II) Duration of coverage. (III) Claims experience. (IV) Health status. (ii) Use of factors With respect to the use of the factors described in clause (i) in setting premium rates, a health insurance issuer shall use one or both of the factors described in subclauses (I) or (IV) of such clause and may use the factors described in subclauses (II) or (III) of such clause. (B) Total variation limit The term total variation limit means the total variation in premium rates charged by a health insurance issuer in the small group market as permitted under applicable State law based on all factors and case characteristics (as described in section 3112(a)(1)). 3112. Rating rules (a) Establishment of minimum standards for premium variations and model small group rating rules Not later than 6 months after the date of enactment of this title, the Secretary shall promulgate regulations establishing the following Minimum Standards and Model Small Group Rating Rules: (1) Minimum standards for premium variations (A) Composite variation limit The composite variation limit shall not be less than 3:1. (B) Total variation limit The total variation limit shall not be less than 5:1. (C) Prohibition on use of certain case characteristics For purposes of this paragraph, in calculating the total variation limit, the State shall not use case characteristics other than those used in calculating the composite variation limit and industry, geographic area, group size, participation rate, class of business, and participation in wellness programs. (2) Model Small Group Rating Rules The following apply to an eligible insurer in a non-adopting State: (A) Premium rates Premium rates for small group health benefit plans to which this title applies shall comply with the following provisions relating to premiums, except as provided for under subsection (b): (i) Variation in premium rates The plan may not vary premium rates by more than the minimum standards provided for under paragraph (1). (ii) Index rate The index rate for a rating period for any class of business shall not exceed the index rate for any other class of business by more than 20 percent, excluding those classes of business related to association groups under this title. (iii) Class of businesses With respect to a class of business, the premium rates charged during a rating period to small employers with similar case characteristics for the same or similar coverage or the rates that could be charged to such employers under the rating system for that class of business, shall not vary from the index rate by more than 25 percent of the index rate under clause (ii). (iv) Increases for new rating periods The percentage increase in the premium rate charged to a small employer for a new rating period may not exceed the sum of the following: (I) The percentage change in the new business premium rate measured from the first day of the prior rating period to the first day of the new rating period. In the case of a health benefit plan into which the small employer carrier is no longer enrolling new small employers, the small employer carrier shall use the percentage change in the base premium rate, except that such change shall not exceed, on a percentage basis, the change in the new business premium rate for the most similar health benefit plan into which the small employer carrier is actively enrolling new small employers. (II) Any adjustment, not to exceed 15 percent annually and adjusted pro rata for rating periods of less then 1 year, due to the claim experience, health status or duration of coverage of the employees or dependents of the small employer as determined from the small employer carrier's rate manual for the class of business involved. (III) Any adjustment due to change in coverage or change in the case characteristics of the small employer as determined from the small employer carrier's rate manual for the class of business. (v) Uniform application of adjustments Adjustments in premium rates for claim experience, health status, or duration of coverage shall not be charged to individual employees or dependents. Any such adjustment shall be applied uniformly to the rates charged for all employees and dependents of the small employer. (vi) Prohibition on use of certain case characteristic A small employer carrier shall not utilize case characteristics, other than those permitted under paragraph (1)(C), without the prior approval of the applicable State authority. (vii) Consistent application of factors Small employer carriers shall apply rating factors, including case characteristics, consistently with respect to all small employers in a class of business. Rating factors shall produce premiums for identical groups which differ only by the amounts attributable to plan design and do not reflect differences due to the nature of the groups assumed to select particular health benefit plans. (viii) Treatment of plans as having same rating period A small employer carrier shall treat all health benefit plans issued or renewed in the same calendar month as having the same rating period. (ix) Require compliance Premium rates for small business health benefit plans shall comply with the requirements of this subsection notwithstanding any assessments paid or payable by a small employer carrier as required by a State's small employer carrier reinsurance program. (B) Establishment of separate class of business Subject to subparagraph (C), a small employer carrier may establish a separate class of business only to reflect substantial differences in expected claims experience or administrative costs related to the following: (i) The small employer carrier uses more than one type of system for the marketing and sale of health benefit plans to small employers. (ii) The small employer carrier has acquired a class of business from another small employer carrier. (iii) The small employer carrier provides coverage to one or more association groups that meet the requirements of this title. (C) Limitation A small employer carrier may establish up to 9 separate classes of business under subparagraph (B), excluding those classes of business related to association groups under this title. (D) Limitation on transfers A small employer carrier shall not transfer a small employer involuntarily into or out of a class of business. A small employer carrier shall not offer to transfer a small employer into or out of a class of business unless such offer is made to transfer all small employers in the class of business without regard to case characteristics, claim experience, health status or duration of coverage since issue. (b) Transitional Model Small Group Rating Rules (1) In general Not later than 6 months after the date of enactment of this title and to the extent necessary to provide for a graduated transition to the minimum standards for premium variation as provided for in subsection (a)(1), the Secretary, in consultation with the National Association of Insurance Commissioners (NAIC), shall promulgate State-specific transitional small group rating rules in accordance with this subsection, which shall be applicable with respect to non-adopting States and eligible insurers operating in such States for a period of not to exceed 3 years from the date of the promulgation of the minimum standards for premium variation pursuant to subsection (a). (2) Compliance with transitional model small group rating rules During the transition period described in paragraph (1), a State that, on the date of enactment of this title, has in effect a small group rating rules methodology that allows for a variation that is less than the variation provided for under subsection (a)(1) (concerning minimum standards for premium variation), shall be deemed to be an adopting State if the State complies with the transitional small group rating rules as promulgated by the Secretary pursuant to paragraph (1). (3) Transitioning of old business (A) In general In developing the transitional small group rating rules under paragraph (1), the Secretary shall, after consultation with the National Association of Insurance Commissioners and representatives of insurers operating in the small group health insurance market in non-adopting States, promulgate special transition standards with respect to independent rating classes for old and new business, to the extent reasonably necessary to protect health insurance consumers and to ensure a stable and fair transition for old and new market entrants. (B) Period for operation of independent rating classes In developing the special transition standards pursuant to subparagraph (A), the Secretary shall permit a carrier in a non-adopting State, at its option, to maintain independent rating classes for old and new business for a period of up to 5 years, with the commencement of such 5-year period to begin at such time, but not later than the date that is 3 years after the date of enactment of this title, as the carrier offers a book of business meeting the minimum standards for premium variation provided for in subsection (a)(1) or the transitional small group rating rules under paragraph (1). (4) Other transitional authority In developing the transitional small group rating rules under paragraph (1), the Secretary shall provide for the application of the transitional small group rating rules in transition States as the Secretary may determine necessary for a an effective transition. (c) Market re-Entry (1) In general Notwithstanding any other provision of law, a health insurance issuer that has voluntarily withdrawn from providing coverage in the small group market prior to the date of enactment of this title shall not be excluded from re-entering such market on a date that is more than 180 days after such date of enactment. (2) Termination The provision of this subsection shall terminate on the date that is 24 months after the date of enactment of this title. 3113. Application and preemption (a) Superseding of state law (1) In general This part shall supersede any and all State laws of a non-adopting State insofar as such State laws (whether enacted prior to or after the date of enactment of this subtitle) relate to rating in the small group insurance market as applied to an eligible insurer, or small group health insurance coverage issued by an eligible insurer, including with respect to coverage issued to a small employer through a small business health plan, in a State. (2) Nonadopting states This part shall supersede any and all State laws of a nonadopting State insofar as such State laws (whether enacted prior to or after the date of enactment of this subtitle)— (A) prohibit an eligible insurer from offering, marketing, or implementing small group health insurance coverage consistent with the Model Small Group Rating Rules or transitional model small group rating rules; or (B) have the effect of retaliating against or otherwise punishing in any respect an eligible insurer for offering, marketing, or implementing small group health insurance coverage consistent with the Model Small Group Rating Rules or transitional model small group rating rules. (b) Savings clause and construction (1) Nonapplication to adopting states Subsection (a) shall not apply with respect to adopting states. (2) Nonapplication to certain insurers Subsection (a) shall not apply with respect to insurers that do not qualify as eligible insurers that offer small group health insurance coverage in a nonadopting State. (3) Nonapplication where obtaining relief under state law Subsection (a)(1) shall not supercede any State law in a nonadopting State to the extent necessary to permit individuals or the insurance department of the State (or other State agency) to obtain relief under State law to require an eligible insurer to comply with the Model Small Group Rating Rules or transitional model small group rating rules. (4) No effect on preemption In no case shall this part be construed to limit or affect in any manner the preemptive scope of sections 502 and 514 of the Employee Retirement Income Security Act of 1974. In no case shall this part be construed to create any cause of action under Federal or State law or enlarge or affect any remedy available under the Employee Retirement Income Security Act of 1974. (5) Preemption limited to rating Subsection (a) shall not preempt any State law that does not have a reference to or a connection with State rating rules that would otherwise apply to eligible insurers. (c) Effective date This section shall apply, at the election of the eligible insurer, beginning in the first plan year or the first calendar year following the issuance of the final rules by the Secretary under the Model Small Group Rating Rules or, as applicable, the Transitional Model Small Group Rating Rules, but in no event earlier than the date that is 12 months after the date of enactment of this title. 3114. Civil actions and jurisdiction (a) In general The courts of the United States shall have exclusive jurisdiction over civil actions involving the interpretation of this part. (b) Actions An eligible insurer may bring an action in the district courts of the United States for injunctive or other equitable relief against any officials or agents of a nonadopting State in connection with any conduct or action, or proposed conduct or action, by such officials or agents which violates, or which would if undertaken violate, section 3113. (c) Direct filing in Court of Appeals At the election of the eligible insurer, an action may be brought under subsection (b) directly in the United States Court of Appeals for the circuit in which the nonadopting State is located by the filing of a petition for review in such Court. (d) Expedited review (1) District court In the case of an action brought in a district court of the United States under subsection (b), such court shall complete such action, including the issuance of a judgment, prior to the end of the 120-day period beginning on the date on which such action is filed, unless all parties to such proceeding agree to an extension of such period. (2) Court of Appeals In the case of an action brought directly in a United States Court of Appeal under subsection (c), or in the case of an appeal of an action brought in a district court under subsection (b), such Court shall complete all action on the petition, including the issuance of a judgment, prior to the end of the 60-day period beginning on the date on which such petition is filed with the Court, unless all parties to such proceeding agree to an extension of such period. (e) Standard of review A court in an action filed under this section, shall render a judgment based on a review of the merits of all questions presented in such action and shall not defer to any conduct or action, or proposed conduct or action, of a nonadopting State. 3115. Ongoing review Not later than 5 years after the date on which the Model Small Group Rating Rules are issued under this part, and every 5 years thereafter, the Secretary, in consultation with the National Association of Insurance Commissioners, shall prepare and submit to the appropriate committees of Congress a report that assesses the effect of the Model Small Group Rating Rules on access, cost, and market functioning in the small group market. Such report may, if the Secretary, in consultation with the National Association of Insurance Commissioners, determines such is appropriate for improving access, costs, and market functioning, contain legislative proposals for recommended modification to such Model Small Group Rating Rules. II Affordable Plans 3121. Definitions In this part: (1) Adopting state The term adopting State means a State that has enacted a law providing that small group, individual, and large group health insurers in such State may offer and sell products in accordance with the List of Required Benefits and the Terms of Application as provided for in section 3122(b). (2) Eligible insurer The term eligible insurer means a health insurance issuer that is licensed in a nonadopting State and that— (A) notifies the Secretary, not later than 30 days prior to the offering of coverage described in this subparagraph, that the issuer intends to offer health insurance coverage consistent with the List of Required Benefits and Terms of Application in a nonadopting State; (B) notifies the insurance department of a nonadopting State (or other applicable State agency), not later than 30 days prior to the offering of coverage described in this subparagraph, that the issuer intends to offer health insurance coverage in that State consistent with the List of Required Benefits and Terms of Application, and provides with such notice a copy of any insurance policy that it intends to offer in the State, its most recent annual and quarterly financial reports, and any other information required to be filed with the insurance department of the State (or other State agency) by the Secretary in regulations; and (C) includes in the terms of the health insurance coverage offered in nonadopting States (including in the terms of any individual certificates that may be offered to individuals in connection with such group health coverage) and filed with the State pursuant to subparagraph (B), a description in the insurer's contract of the List of Required Benefits and a description of the Terms of Application, including a description of the benefits to be provided, and that adherence to such standards is included as a term of such contract. (3) Health insurance coverage The term health insurance coverage means any coverage issued in the small group, individual, or large group health insurance markets, including with respect to small business health plans, except that such term shall not include excepted benefits (as defined in section 2791(c)). (4) List of Required Benefits The term List of Required Benefits means the List issued under section 3122(a). (5) Nonadopting state The term nonadopting State means a State that is not an adopting State. (6) State law The term State law means all laws, decisions, rules, regulations, or other State actions (including actions by a State agency) having the effect of law, of any State. (7) State Provider Freedom of Choice Law The term State Provider Freedom of Choice Law means a State law requiring that a health insurance issuer, with respect to health insurance coverage, not discriminate with respect to participation, reimbursement, or indemnification as to any provider who is acting within the scope of the provider's license or certification under applicable State law. (8) Terms of Application The term Terms of Application means terms provided under section 3122(a). 3122. Offering affordable plans (a) List of Required Benefits Not later than 3 months after the date of enactment of this title, the Secretary, in consultation with the National Association of Insurance Commissioners, shall issue by interim final rule a list (to be known as the List of Required Benefits ) of covered benefits, services, or categories of providers that are required to be provided by health insurance issuers, in each of the small group, individual, and large group markets, in at least 26 States as a result of the application of State covered benefit, service, and category of provider mandate laws. With respect to plans sold to or through small business health plans, the List of Required Benefits applicable to the small group market shall apply. (b) Terms of Application (1) State with mandates With respect to a State that has a covered benefit, service, or category of provider mandate in effect that is covered under the List of Required Benefits under subsection (a), such State mandate shall, subject to paragraph (3) (concerning uniform application), apply to a coverage plan or plan in, as applicable, the small group, individual, or large group market or through a small business health plan in such State. (2) States without mandates With respect to a State that does not have a covered benefit, service, or category of provider mandate in effect that is covered under the List of Required Benefits under subsection (a), such mandate shall not apply, as applicable, to a coverage plan or plan in the small group, individual, or large group market or through a small business health plan in such State. (3) Uniform application of laws (A) In general With respect to a State described in paragraph (1), in applying a covered benefit, service, or category of provider mandate that is on the List of Required Benefits under subsection (a) the State shall permit a coverage plan or plan offered in the small group, individual, or large group market or through a small business health plan in such State to apply such benefit, service, or category of provider coverage in a manner consistent with the manner in which such coverage is applied under one of the three most heavily subscribed national health plans offered under the Federal Employee Health Benefits Program under chapter 89 of title 5, United States Code (as determined by the Secretary in consultation with the Director of the Office of Personnel Management), and consistent with the Publication of Benefit Applications under subsection (c). In the event a covered benefit, service, or category of provider appearing in the List of Required Benefits is not offered in one of the three most heavily subscribed national health plans offered under the Federal Employees Health Benefits Program, such covered benefit, service, or category of provider requirement shall be applied in a manner consistent with the manner in which such coverage is offered in the remaining most heavily subscribed plan of the remaining Federal Employees Health Benefits Program plans, as determined by the Secretary, in consultation with the Director of the Office of Personnel Management. (B) Exception regarding State provider freedom of choice laws Notwithstanding subparagraph (A), in the event a category of provider mandate is included in the List of Covered Benefits, any State Provider Freedom of Choice Law (as defined in section 3121(7)) that is in effect in any State in which such category of provider mandate is in effect shall not be preempted, with respect to that category of provider, by this part. (c) Publication of benefit applications Not later than 3 months after the date of enactment of this title, and on the first day of every calendar year thereafter, the Secretary, in consultation with the Director of the Office of Personnel Management, shall publish in the Federal Register a description of such covered benefits, services, and categories of providers covered in that calendar year by each of the three most heavily subscribed nationally available Federal Employee Health Benefits Plan options which are also included on the List of Required Benefits. (d) Effective dates (1) Small business health plans With respect to health insurance provided to participating employers of small business health plans, the requirements of this part (concerning lower cost plans) shall apply beginning on the date that is 12 months after the date of enactment of this title. (2) Non-association coverage With respect to health insurance provided to groups or individuals other than participating employers of small business health plans, the requirements of this part shall apply beginning on the date that is 15 months after the date of enactment of this title. (e) Updating of list of required benefits Not later than 2 years after the date on which the list of required benefits is issued under subsection (a), and every 2 years thereafter, the Secretary, in consultation with the National Association of Insurance Commissioners, shall update the list based on changes in the laws and regulations of the States. The Secretary shall issue the updated list by regulation, and such updated list shall be effective upon the first plan year following the issuance of such regulation. 3123. Application and preemption (a) Superceding of state law (1) In general This part shall supersede any and all State laws insofar as such laws relate to mandates relating to covered benefits, services, or categories of provider in the health insurance market as applied to an eligible insurer, or health insurance coverage issued by an eligible insurer, including with respect to coverage issued to a small business health plan, in a nonadopting State. (2) Nonadopting states This part shall supersede any and all State laws of a nonadopting State (whether enacted prior to or after the date of enactment of this title) insofar as such laws— (A) prohibit an eligible insurer from offering, marketing, or implementing health insurance coverage consistent with the Benefit Choice Standards, as provided for in section 3122(a); or (B) have the effect of retaliating against or otherwise punishing in any respect an eligible insurer for offering, marketing, or implementing health insurance coverage consistent with the Benefit Choice Standards. (b) Savings clause and construction (1) Nonapplication to adopting states Subsection (a) shall not apply with respect to adopting States. (2) Nonapplication to certain insurers Subsection (a) shall not apply with respect to insurers that do not qualify as eligible insurers who offer health insurance coverage in a nonadopting State. (3) Nonapplication where obtaining relief under state law Subsection (a)(1) shall not supercede any State law of a nonadopting State to the extent necessary to permit individuals or the insurance department of the State (or other State agency) to obtain relief under State law to require an eligible insurer to comply with the Benefit Choice Standards. (4) No effect on preemption In no case shall this part be construed to limit or affect in any manner the preemptive scope of sections 502 and 514 of the Employee Retirement Income Security Act of 1974. In no case shall this part be construed to create any cause of action under Federal or State law or enlarge or affect any remedy available under the Employee Retirement Income Security Act of 1974. (5) Preemption limited to benefits Subsection (a) shall not preempt any State law that does not have a reference to or a connection with State mandates regarding covered benefits, services, or categories of providers that would otherwise apply to eligible insurers. 3124. Civil actions and jurisdiction (a) In general The courts of the United States shall have exclusive jurisdiction over civil actions involving the interpretation of this part. (b) Actions An eligible insurer may bring an action in the district courts of the United States for injunctive or other equitable relief against any officials or agents of a nonadopting State in connection with any conduct or action, or proposed conduct or action, by such officials or agents which violates, or which would if undertaken violate, section 3123. (c) Direct filing in Court of Appeals At the election of the eligible insurer, an action may be brought under subsection (b) directly in the United States Court of Appeals for the circuit in which the nonadopting State is located by the filing of a petition for review in such Court. (d) Expedited review (1) District court In the case of an action brought in a district court of the United States under subsection (b), such court shall complete such action, including the issuance of a judgment, prior to the end of the 120-day period beginning on the date on which such action is filed, unless all parties to such proceeding agree to an extension of such period. (2) Court of Appeals In the case of an action brought directly in a United States Court of Appeal under subsection (c), or in the case of an appeal of an action brought in a district court under subsection (b), such Court shall complete all action on the petition, including the issuance of a judgment, prior to the end of the 60-day period beginning on the date on which such petition is filed with the Court, unless all parties to such proceeding agree to an extension of such period. (e) Standard of review A court in an action filed under this section, shall render a judgment based on a review of the merits of all questions presented in such action and shall not defer to any conduct or action, or proposed conduct or action, of a nonadopting State. 3125. Rules of construction (a) In general Notwithstanding any other provision of Federal or State law, a health insurance issuer in an adopting State or an eligible insurer in a non-adopting State may amend its existing policies to be consistent with the terms of this subtitle (concerning rating and benefits). (b) Health savings accounts Nothing in this subtitle shall be construed to create any mandates for coverage of benefits for HSA-qualified health plans that would require reimbursements in violation of section 223(c)(2) of the Internal Revenue Code of 1986. . II Targeted Efforts to Expand Access 211. Extending coverage of dependents (a) Employee Retirement Income Security Act of 1974 (1) In general Part 7 of subtitle B of title I of the Employee Retirement Income Security Act of 1974 is amended by inserting after section 714 the following new section: 715. Extending coverage of dependents (a) In general In the case of a group health plan, or health insurance coverage offered in connection with a group health plan, that treats as a beneficiary under the plan an individual who is a dependent child of a participant or beneficiary under the plan, the plan or coverage shall continue to treat the individual as a dependent child without regard to the individual’s age until the individual turns 26 years of age. (b) Construction Nothing in this section shall be construed as requiring a group health plan to provide benefits for dependent children as beneficiaries under the plan or to require a participant to elect coverage of dependent children. . (2) Clerical amendment The table of contents of such Act is amended by inserting after the item relating to section 714 the following new item: Sec. 715. Extending coverage of dependents. . (b) PHSA Title XXVII of the Public Health Service Act, as restored by section 2, is amended by inserting after section 2707 the following new section: 2708. Extending coverage of dependents (a) In general In the case of a group health plan, or health insurance coverage offered in connection with a group health plan, that treats as a beneficiary under the plan an individual who is a dependent child of a participant or beneficiary under the plan, the plan or coverage shall continue to treat the individual as a dependent child without regard to the individual’s age until the individual turns 26 years of age. (b) Construction Nothing in this section shall be construed as requiring a group health plan to provide benefits for dependent children as beneficiaries under the plan or to require a participant to elect coverage of dependent children. . (c) IRC (1) In general Subchapter B of chapter 100 of the Internal Revenue Code of 1986 is amended by adding at the end the following new section: 9814. Extending coverage of dependents (a) In general In the case of a group health plan that treats as a beneficiary under the plan an individual who is a dependent child of a participant or beneficiary under the plan, the plan shall continue to treat the individual as a dependent child without regard to the individual’s age until the individual turns 26 years of age. (b) Construction Nothing in this section shall be construed as requiring a group health plan to provide coverage for dependent children as beneficiaries under the plan or to require a participant to elect coverage of dependent children. . (2) Clerical amendment The table of sections in such subchapter is amended by adding at the end the following new item: Sec. 9814. Extending coverage of dependents. . (d) Effective date The amendments made by subsections (a), (b), and (c) shall apply to group health plans for plan years beginning more than 3 months after the date of the enactment of this Act and shall apply to individuals who are dependent children under a group health plan, or health insurance coverage offered in connection with such a plan, on or after such date. (e) Adult dependents (1) Exclusion of amounts expended for medical care The first sentence of section 105(b) of the Internal Revenue Code of 1986 (relating to amounts expended for medical care) is amended— (A) by striking and his dependents and inserting his dependents ; and (B) by inserting before the period the following: , and any child (as defined in section 152(f)(1)) of the taxpayer who as of the end of the taxable year has not attained age 27 . (2) Self-employed health insurance deduction Section 162(l)(1) of such Code is amended to read as follows: (1) Allowance of deduction In the case of a taxpayer who is an employee within the meaning of section 401(c)(1), there shall be allowed as a deduction under this section an amount equal to the amount paid during the taxable year for insurance which constitutes medical care for (A) the taxpayer, (B) the taxpayer’s spouse, (C) the taxpayer’s dependents, and (D) any child (as defined in section 152(f)(1)) of the taxpayer who as of the end of the taxable year has not attained age 27. . (3) Coverage under self-employed deduction Section 162(l)(2)(B) of such Code is amended by inserting , or any dependent, or individual described in subparagraph (D) of paragraph (1) with respect to, after spouse of . (4) Sick and accident benefits provided to members of a voluntary employees’ beneficiary association and their dependents Section 501(c)(9) of such Code is amended by adding at the end the following new sentence: For purposes of providing for the payment of sick and accident benefits to members of such an association and their dependents, the term dependent shall include any individual who is a child (as defined in section 152(f)(1)) of a member who as of the end of the calendar year has not attained age 27. . (5) Medical and other benefits for retired employees Section 401(h) of such Code is amended by adding at the end the following: For purposes of this subsection, the term dependent shall include any individual who is a child (as defined in section 152(f)(1)) of a retired employee who as of the end of the calendar year has not attained age 27. . 212. Prohibiting preexisting condition exclusions for enrollees under age 19 (a) PHSA Section 2701(a) of the Public Health Service Act ( 42 U.S.C. 300gg(a) ), as restored by section 2, is amended— (1) in the matter preceding paragraph (1), by inserting and the last sentence of this subsection after subsection (d) ; and (2) by adding at the end the following new sentence: In the case of a participant or beneficiary who is under 19 years of age, a group health plan and a health insurance issuer offering group or individual health insurance coverage may not impose any preexisting condition exclusion with respect to such plan or coverage. . (b) ERISA Section 701(a) of the Employee Retirement Income Security Act of 1974, as restored by section 2, is amended— (1) in the matter preceding paragraph (1), by inserting and the last sentence of this subsection after subsection (d) ; and (2) by adding at the end the following new sentence: In the case of a participant or beneficiary who is under 19 years of age, a group health plan and a health insurance issuer offering group or individual health insurance coverage may not impose any preexisting condition exclusion with respect to such plan or coverage. . (c) IRC Section 9801 of the Internal Revenue Code of 1986, as restored by section 2, is amended— (1) in the matter preceding paragraph (1), by inserting and the last sentence of this subsection after subsection (d) ; and (2) by adding at the end the following new sentence: In the case of a participant or beneficiary who is under 19 years of age, a group health plan may not impose any preexisting condition exclusion with respect to such plan. . 213. Health plan finders (a) State plan finders Not later than 12 months after the date of the enactment of this Act, each State may contract with a private entity to develop and operate a plan finder website (referred to in this section as a State plan finder ) which shall provide information to individuals in such State on plans of health insurance coverage that are available to individuals in such State (in this section referred to as a health insurance plan ) . Such State may not operate a plan finder itself. (b) Multi-State plan finders (1) In general A private entity may operate a multi-State finder that operates under this section in the States involved in the same manner as a State plan finder would operate in a single State. (2) Sharing of information States shall regulate the manner in which data is shared between plan finders to ensure consistency and accuracy in the information about health insurance plans contained in such finders. (c) Requirements for plan finders Each plan finder shall meet the following requirements: (1) The plan finder shall ensure that each health insurance plan in the plan finder meets the requirements for such plans under subsection (d). (2) The plan finder shall present complete information on the costs and benefits of health insurance plans (including information on monthly premium, copayments, and deductibles) in a uniform manner that— (A) uses the standard definitions developed under paragraph (3); and (B) is designed to allow consumers to easily compare such plans. (3) The plan finder shall be available on the Internet and accessible to all individuals in the State or, in the case of a multi-State plan finder, in all States covered by the multi-State plan finder. (4) The plan finder shall allow consumers to search and sort data on the health insurance plans in the plan finder on criteria such as coverage of specific benefits (such as coverage of disease management services or pediatric care services), as well as data available on quality. (5) The plan finder shall meet all relevant State laws and regulations, including laws and regulations related to the marketing of insurance products. In the case of a multi-State plan finder, the finder shall meet such laws and regulations for all of the States involved. (6) The plan finder shall meet solvency, financial, and privacy requirements established by the State or States in which the plan finder operates or the Secretary for multi-State finders. (7) The plan finder and the employees of the plan finder shall be appropriately licensed in the State or States in which the plan finder operates, if such licensure is required by such State or States. (8) Notwithstanding subsection (f)(1), the plan finder shall assist individuals who are eligible for the Medicaid program under title XIX of the Social Security Act or State Children’s Health Insurance Program under title XXI of such Act by including information on Medicaid options, eligibility, and how to enroll. (d) Requirements for plans participating in a plan finder (1) In general Each State shall ensure that health insurance plans participating in the State plan finder or in a multi-State plan finder meet the requirements of paragraph (2) (relating to adequacy of insurance coverage, consumer protection, and financial strength). (2) Specific requirements In order to participate in a plan finder, a health insurance plan must meet all of the following requirements, as determined by each State in which such plan operates: (A) The health insurance plan shall be actuarially sound. (B) The health insurance plan may not have a history of abusive policy rescissions. (C) The health insurance plan shall meet financial and solvency requirements. (D) The health insurance plan shall disclose— (i) all financial arrangements involving the sale and purchase of health insurance, such as the payment of fees and commissions; and (ii) such arrangements may not be abusive. (E) The health insurance plan shall maintain electronic health records that comply with the requirements of the American Recovery and Reinvestment Act of 2009 ( Public Law 111–5 ) related to electronic health records. (F) The health insurance plan shall make available to plan enrollees via the finder, whether by information provided to the finder or by a website link directing the enrollee from the finder to the health insurance plan website, data that includes the price and cost to the individual of services offered by a provider according to the terms and conditions of the health plan. Data described in this paragraph is not made public by the finder, only made available to the individual once enrolled in the health plan. (e) Prohibitions (1) Direct Enrollment The State plan finder may not directly enroll individuals in health insurance plans. (2) Conflicts of interest (A) Companies A health insurance issuer offering a health insurance plan through a plan finder may not— (i) be the private entity developing and maintaining a plan finder under subsections (a) and (b); or (ii) have an ownership interest in such private entity or in the plan finder. (B) Individuals An individual employed by a health insurance issuer offering a health insurance plan through a plan finder may not serve as a director or officer for— (i) the private entity developing and maintaining a plan finder under subsections (a) and (b); or (ii) the plan finder. (f) Construction Nothing in this section shall be construed to allow the Secretary authority to regulate benefit packages or to prohibit health insurance brokers and agents from— (1) utilizing the plan finder for any purpose; or (2) marketing or offering health insurance products. (g) Plan finder defined For purposes of this section, the term plan finder means a State plan finder under subsection (a) or a multi-State plan finder under subsection (b). (h) State defined In this section, the term State has the meaning given such term for purposes of title XIX of the Social Security Act. III Expanding Choices by Allowing Americans to Buy Health Care Coverage Across State Lines 221. Interstate purchasing of health insurance (a) In General Title XXVII of the Public Health Service Act ( 42 U.S.C. 300gg et seq. ), as restored by section 2, is amended by adding at the end the following new part: D Cooperative Governing of Individual Health Insurance Coverage 2795. Definitions In this part: (1) Primary state The term primary State means, with respect to individual health insurance coverage offered by a health insurance issuer, the State designated by the issuer as the State whose covered laws shall govern the health insurance issuer in the sale of such coverage under this part. An issuer, with respect to a particular policy, may only designate one such State as its primary State with respect to all such coverage it offers. Such an issuer may not change the designated primary State with respect to individual health insurance coverage once the policy is issued, except that such a change may be made upon renewal of the policy. With respect to such designated State, the issuer is deemed to be doing business in that State. (2) Secondary state The term secondary State means, with respect to individual health insurance coverage offered by a health insurance issuer, any State that is not the primary State. In the case of a health insurance issuer that is selling a policy in, or to a resident of, a secondary State, the issuer is deemed to be doing business in that secondary State. (3) Health insurance issuer The term health insurance issuer has the meaning given such term in section 2791(b)(2), except that such an issuer must be licensed in the primary State and be qualified to sell individual health insurance coverage in that State. (4) Individual health insurance coverage The term individual health insurance coverage means health insurance coverage offered in the individual market, as defined in section 2791(e)(1). (5) Applicable state authority The term applicable State authority means, with respect to a health insurance issuer in a State, the State insurance commissioner or official or officials designated by the State to enforce the requirements of this title for the State with respect to the issuer. (6) Hazardous financial condition The term hazardous financial condition means that, based on its present or reasonably anticipated financial condition, a health insurance issuer is unlikely to be able— (A) to meet obligations to policyholders with respect to known claims and reasonably anticipated claims; or (B) to pay other obligations in the normal course of business. (7) Covered laws (A) In general The term covered laws means the laws, rules, regulations, agreements, and orders governing the insurance business pertaining to— (i) individual health insurance coverage issued by a health insurance issuer; (ii) the offer, sale, rating (including medical underwriting), renewal, and issuance of individual health insurance coverage to an individual; (iii) the provision to an individual in relation to individual health insurance coverage of health care and insurance related services; (iv) the provision to an individual in relation to individual health insurance coverage of management, operations, and investment activities of a health insurance issuer; and (v) the provision to an individual in relation to individual health insurance coverage of loss control and claims administration for a health insurance issuer with respect to liability for which the issuer provides insurance. (B) Exception Such term does not include any law, rule, regulation, agreement, or order governing the use of care or cost management techniques, including any requirement related to provider contracting, network access or adequacy, health care data collection, or quality assurance. (8) State The term State means the 50 States and includes the District of Columbia, Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands. (9) Unfair claims settlement practices The term unfair claims settlement practices means only the following practices: (A) Knowingly misrepresenting to claimants and insured individuals relevant facts or policy provisions relating to coverage at issue. (B) Failing to acknowledge with reasonable promptness pertinent communications with respect to claims arising under policies. (C) Failing to adopt and implement reasonable standards for the prompt investigation and settlement of claims arising under policies. (D) Failing to effectuate prompt, fair, and equitable settlement of claims submitted in which liability has become reasonably clear. (E) Refusing to pay claims without conducting a reasonable investigation. (F) Failing to affirm or deny coverage of claims within a reasonable period of time after having completed an investigation related to those claims. (G) A pattern or practice of compelling insured individuals or their beneficiaries to institute suits to recover amounts due under its policies by offering substantially less than the amounts ultimately recovered in suits brought by them. (H) A pattern or practice of attempting to settle or settling claims for less than the amount that a reasonable person would believe the insured individual or his or her beneficiary was entitled by reference to written or printed advertising material accompanying or made part of an application. (I) Attempting to settle or settling claims on the basis of an application that was materially altered without notice to, or knowledge or consent of, the insured. (J) Failing to provide forms necessary to present claims within 15 calendar days of a requests with reasonable explanations regarding their use. (K) Attempting to cancel a policy in less time than that prescribed in the policy or by the law of the primary State. (10) Fraud and abuse The term fraud and abuse means an act or omission committed by a person who, knowingly and with intent to defraud, commits, or conceals any material information concerning, one or more of the following: (A) Presenting, causing to be presented or preparing with knowledge or belief that it will be presented to or by an insurer, a reinsurer, broker or its agent, false information as part of, in support of or concerning a fact material to one or more of the following: (i) An application for the issuance or renewal of an insurance policy or reinsurance contract. (ii) The rating of an insurance policy or reinsurance contract. (iii) A claim for payment or benefit pursuant to an insurance policy or reinsurance contract. (iv) Premiums paid on an insurance policy or reinsurance contract. (v) Payments made in accordance with the terms of an insurance policy or reinsurance contract. (vi) A document filed with the commissioner or the chief insurance regulatory official of another jurisdiction. (vii) The financial condition of an insurer or reinsurer. (viii) The formation, acquisition, merger, reconsolidation, dissolution or withdrawal from one or more lines of insurance or reinsurance in all or part of a State by an insurer or reinsurer. (ix) The issuance of written evidence of insurance. (x) The reinstatement of an insurance policy. (B) Solicitation or acceptance of new or renewal insurance risks on behalf of an insurer reinsurer or other person engaged in the business of insurance by a person who knows or should know that the insurer or other person responsible for the risk is insolvent at the time of the transaction. (C) Transaction of the business of insurance in violation of laws requiring a license, certificate of authority or other legal authority for the transaction of the business of insurance. (D) Attempt to commit, aiding or abetting in the commission of, or conspiracy to commit the acts or omissions specified in this paragraph. 2796. Application of law (a) In General The covered laws of the primary State shall apply to individual health insurance coverage offered by a health insurance issuer in the primary State and in any secondary State, but only if the coverage and issuer comply with the conditions of this section with respect to the offering of coverage in any secondary State. (b) Exemptions From Covered Laws in a Secondary State Except as provided in this section, a health insurance issuer with respect to its offer, sale, rating (including medical underwriting), renewal, and issuance of individual health insurance coverage in any secondary State is exempt from any covered laws of the secondary State (and any rules, regulations, agreements, or orders sought or issued by such State under or related to such covered laws) to the extent that such laws would— (1) make unlawful, or regulate, directly or indirectly, the operation of the health insurance issuer operating in the secondary State, except that any secondary State may require such an issuer— (A) to pay, on a nondiscriminatory basis, applicable premium and other taxes (including high risk pool assessments) which are levied on insurers and surplus lines insurers, brokers, or policyholders under the laws of the State; (B) to register with and designate the State insurance commissioner as its agent solely for the purpose of receiving service of legal documents or process; (C) to submit to an examination of its financial condition by the State insurance commissioner in any State in which the issuer is doing business to determine the issuer’s financial condition, if— (i) the State insurance commissioner of the primary State has not done an examination within the period recommended by the National Association of Insurance Commissioners; and (ii) any such examination is conducted in accordance with the examiners’ handbook of the National Association of Insurance Commissioners and is coordinated to avoid unjustified duplication and unjustified repetition; (D) to comply with a lawful order issued— (i) in a delinquency proceeding commenced by the State insurance commissioner if there has been a finding of financial impairment under subparagraph (C); or (ii) in a voluntary dissolution proceeding; (E) to comply with an injunction issued by a court of competent jurisdiction, upon a petition by the State insurance commissioner alleging that the issuer is in hazardous financial condition; (F) to participate, on a nondiscriminatory basis, in any insurance insolvency guaranty association or similar association to which a health insurance issuer in the State is required to belong; (G) to comply with any State law regarding fraud and abuse (as defined in section 2795(10)), except that if the State seeks an injunction regarding the conduct described in this subparagraph, such injunction must be obtained from a court of competent jurisdiction; (H) to comply with any State law regarding unfair claims settlement practices (as defined in section 2795(9)); or (I) to comply with the applicable requirements for independent review under section 2798 with respect to coverage offered in the State; (2) require any individual health insurance coverage issued by the issuer to be countersigned by an insurance agent or broker residing in that Secondary State; or (3) otherwise discriminate against the issuer issuing insurance in both the primary State and in any secondary State. (c) Clear and Conspicuous Disclosure A health insurance issuer shall provide the following notice, in 12-point bold type, in any insurance coverage offered in a secondary State under this part by such a health insurance issuer and at renewal of the policy, with the 5 blank spaces therein being appropriately filled with the name of the health insurance issuer, the name of primary State, the name of the secondary State, the name of the secondary State, and the name of the secondary State, respectively, for the coverage concerned: This policy is issued by _____ and is governed by the laws and regulations of the State of _____, and it has met all the laws of that State as determined by that State’s Department of Insurance. This policy may be less expensive than others because it is not subject to all of the insurance laws and regulations of the State of _____, including coverage of some services or benefits mandated by the law of the State of _____. Additionally, this policy is not subject to all of the consumer protection laws or restrictions on rate changes of the State of _____. As with all insurance products, before purchasing this policy, you should carefully review the policy and determine what health care services the policy covers and what benefits it provides, including any exclusions, limitations, or conditions for such services or benefits. . (d) Prohibition on Certain Reclassifications and Premium Increases (1) In general For purposes of this section, a health insurance issuer that provides individual health insurance coverage to an individual under this part in a primary or secondary State may not upon renewal— (A) move or reclassify the individual insured under the health insurance coverage from the class such individual is in at the time of issue of the contract based on the health-status related factors of the individual; or (B) increase the premiums assessed the individual for such coverage based on a health status-related factor or change of a health status-related factor or the past or prospective claim experience of the insured individual. (2) Construction Nothing in paragraph (1) shall be construed to prohibit a health insurance issuer— (A) from terminating or discontinuing coverage or a class of coverage in accordance with subsections (b) and (c) of section 2742; (B) from raising premium rates for all policy holders within a class based on claims experience; (C) from changing premiums or offering discounted premiums to individuals who engage in wellness activities at intervals prescribed by the issuer, if such premium changes or incentives— (i) are disclosed to the consumer in the insurance contract; (ii) are based on specific wellness activities that are not applicable to all individuals; and (iii) are not obtainable by all individuals to whom coverage is offered; (D) from reinstating lapsed coverage; or (E) from retroactively adjusting the rates charged an insured individual if the initial rates were set based on material misrepresentation by the individual at the time of issue. (e) Prior Offering of Policy in Primary State A health insurance issuer may not offer for sale individual health insurance coverage in a secondary State unless that coverage is currently offered for sale in the primary State. (f) Licensing of Agents or Brokers for Health Insurance Issuers Any State may require that a person acting, or offering to act, as an agent or broker for a health insurance issuer with respect to the offering of individual health insurance coverage obtain a license from that State, with commissions or other compensation subject to the provisions of the laws of that State, except that a State may not impose any qualification or requirement which discriminates against a nonresident agent or broker. (g) Documents for Submission to State Insurance Commissioner Each health insurance issuer issuing individual health insurance coverage in both primary and secondary States shall submit— (1) to the insurance commissioner of each State in which it intends to offer such coverage, before it may offer individual health insurance coverage in such State— (A) a copy of the plan of operation or feasibility study or any similar statement of the policy being offered and its coverage (which shall include the name of its primary State and its principal place of business); (B) written notice of any change in its designation of its primary State; and (C) written notice from the issuer of the issuer’s compliance with all the laws of the primary State; and (2) to the insurance commissioner of each secondary State in which it offers individual health insurance coverage, a copy of the issuer’s quarterly financial statement submitted to the primary State, which statement shall be certified by an independent public accountant and contain a statement of opinion on loss and loss adjustment expense reserves made by— (A) a member of the American Academy of Actuaries; or (B) a qualified loss reserve specialist. (h) Power of Courts To Enjoin Conduct Nothing in this section shall be construed to affect the authority of any Federal or State court to enjoin— (1) the solicitation or sale of individual health insurance coverage by a health insurance issuer to any person or group who is not eligible for such insurance; or (2) the solicitation or sale of individual health insurance coverage that violates the requirements of the law of a secondary State which are described in subparagraphs (A) through (H) of section 2796(b)(1). (i) Power of Secondary States To Take Administrative Action Nothing in this section shall be construed to affect the authority of any State to enjoin conduct in violation of that State’s laws described in section 2796(b)(1). (j) State Powers To Enforce State Laws (1) In general Subject to the provisions of subsection (b)(1)(G) (relating to injunctions) and paragraph (2), nothing in this section shall be construed to affect the authority of any State to make use of any of its powers to enforce the laws of such State with respect to which a health insurance issuer is not exempt under subsection (b). (2) Courts of competent jurisdiction If a State seeks an injunction regarding the conduct described in paragraphs (1) and (2) of subsection (h), such injunction must be obtained from a Federal or State court of competent jurisdiction. (k) States’ Authority To Sue Nothing in this section shall affect the authority of any State to bring action in any Federal or State court. (l) Generally Applicable Laws Nothing in this section shall be construed to affect the applicability of State laws generally applicable to persons or corporations. (m) Guaranteed Availability of Coverage to HIPAA Eligible Individuals To the extent that a health insurance issuer is offering coverage in a primary State that does not accommodate residents of secondary States or does not provide a working mechanism for residents of a secondary State, and the issuer is offering coverage under this part in such secondary State which has not adopted a qualified high risk pool as its acceptable alternative mechanism (as defined in section 2744(c)(2)), the issuer shall, with respect to any individual health insurance coverage offered in a secondary State under this part, comply with the guaranteed availability requirements for eligible individuals in section 2741. 2797. Primary State must meet Federal floor before issuer may sell into secondary States A health insurance issuer may not offer, sell, or issue individual health insurance coverage in a secondary State if the State insurance commissioner does not use a risk-based capital formula for the determination of capital and surplus requirements for all health insurance issuers. 2798. Independent external appeals procedures (a) Right to External Appeal A health insurance issuer may not offer, sell, or issue individual health insurance coverage in a secondary State under the provisions of this title unless— (1) both the secondary State and the primary State have legislation or regulations in place establishing an independent review process for individuals who are covered by individual health insurance coverage, or (2) in any case in which the requirements of subparagraph (A) are not met with respect to the either of such States, the issuer provides an independent review mechanism substantially identical (as determined by the applicable State authority of such State) to that prescribed in the Health Carrier External Review Model Act of the National Association of Insurance Commissioners for all individuals who purchase insurance coverage under the terms of this part, except that, under such mechanism, the review is conducted by an independent medical reviewer, or a panel of such reviewers, with respect to whom the requirements of subsection (b) are met. (b) Qualifications of Independent Medical Reviewers In the case of any independent review mechanism referred to in subsection (a)(2)— (1) In general In referring a denial of a claim to an independent medical reviewer, or to any panel of such reviewers, to conduct independent medical review, the issuer shall ensure that— (A) each independent medical reviewer meets the qualifications described in paragraphs (2) and (3); (B) with respect to each review, each reviewer meets the requirements of paragraph (4) and the reviewer, or at least 1 reviewer on the panel, meets the requirements described in paragraph (5); and (C) compensation provided by the issuer to each reviewer is consistent with paragraph (6). (2) Licensure and expertise Each independent medical reviewer shall be a physician (allopathic or osteopathic) or health care professional who— (A) is appropriately credentialed or licensed in 1 or more States to deliver health care services; and (B) typically treats the condition, makes the diagnosis, or provides the type of treatment under review. (3) Independence (A) In general Subject to subparagraph (B), each independent medical reviewer in a case shall— (i) not be a related party (as defined in paragraph (7)); (ii) not have a material familial, financial, or professional relationship with such a party; and (iii) not otherwise have a conflict of interest with such a party (as determined under regulations). (B) Exception Nothing in subparagraph (A) shall be construed to— (i) prohibit an individual, solely on the basis of affiliation with the issuer, from serving as an independent medical reviewer if— (I) a non-affiliated individual is not reasonably available; (II) the affiliated individual is not involved in the provision of items or services in the case under review; (III) the fact of such an affiliation is disclosed to the issuer and the enrollee (or authorized representative) and neither party objects; and (IV) the affiliated individual is not an employee of the issuer and does not provide services exclusively or primarily to or on behalf of the issuer; (ii) prohibit an individual who has staff privileges at the institution where the treatment involved takes place from serving as an independent medical reviewer merely on the basis of such affiliation if the affiliation is disclosed to the issuer and the enrollee (or authorized representative), and neither party objects; or (iii) prohibit receipt of compensation by an independent medical reviewer from an entity if the compensation is provided consistent with paragraph (6). (4) Practicing health care professional in same field (A) In general In a case involving treatment, or the provision of items or services— (i) by a physician, a reviewer shall be a practicing physician (allopathic or osteopathic) of the same or similar specialty, as a physician who, acting within the appropriate scope of practice within the State in which the service is provided or rendered, typically treats the condition, makes the diagnosis, or provides the type of treatment under review; or (ii) by a non-physician health care professional, the reviewer, or at least 1 member of the review panel, shall be a practicing non-physician health care professional of the same or similar specialty as the non-physician health care professional who, acting within the appropriate scope of practice within the State in which the service is provided or rendered, typically treats the condition, makes the diagnosis, or provides the type of treatment under review. (B) Practicing defined For purposes of this paragraph, the term practicing means, with respect to an individual who is a physician or other health care professional, that the individual provides health care services to individual patients on average at least 2 days per week. (5) Pediatric expertise In the case of an external review relating to a child, a reviewer shall have expertise under paragraph (2) in pediatrics. (6) Limitations on reviewer compensation Compensation provided by the issuer to an independent medical reviewer in connection with a review under this section shall— (A) not exceed a reasonable level; and (B) not be contingent on the decision rendered by the reviewer. (7) Related party defined For purposes of this section, the term related party means, with respect to a denial of a claim under a coverage relating to an enrollee, any of the following: (A) The issuer involved, or any fiduciary, officer, director, or employee of the issuer. (B) The enrollee (or authorized representative). (C) The health care professional that provides the items or services involved in the denial. (D) The institution at which the items or services (or treatment) involved in the denial are provided. (E) The manufacturer of any drug or other item that is included in the items or services involved in the denial. (F) Any other party determined under any regulations to have a substantial interest in the denial involved. (8) Definitions For purposes of this subsection: (A) Enrollee The term enrollee means, with respect to health insurance coverage offered by a health insurance issuer, an individual enrolled with the issuer to receive such coverage. (B) Health care professional The term health care professional means an individual who is licensed, accredited, or certified under State law to provide specified health care services and who is operating within the scope of such licensure, accreditation, or certification. 2799. Enforcement (a) In General Subject to subsection (b), with respect to specific individual health insurance coverage the primary State for such coverage has sole jurisdiction to enforce the primary State’s covered laws in the primary State and any secondary State. (b) Secondary State’s Authority Nothing in subsection (a) shall be construed to affect the authority of a secondary State to enforce its laws as set forth in the exception specified in section 2796(b)(1). (c) Court Interpretation In reviewing action initiated by the applicable secondary State authority, the court of competent jurisdiction shall apply the covered laws of the primary State. (d) Notice of Compliance Failure In the case of individual health insurance coverage offered in a secondary State that fails to comply with the covered laws of the primary State, the applicable State authority of the secondary State may notify the applicable State authority of the primary State. . (b) Effective Date The amendment made by subsection (a) shall apply to individual health insurance coverage offered, issued, or sold after the date that is one year after the date of the enactment of this Act. (c) GAO Ongoing Study and Reports (1) Study The Comptroller General of the United States shall conduct an ongoing study concerning the effect of the amendment made by subsection (a) on— (A) the number of uninsured and under-insured; (B) the availability and cost of health insurance policies for individuals with preexisting medical conditions; (C) the availability and cost of health insurance policies generally; (D) the elimination or reduction of different types of benefits under health insurance policies offered in different States; and (E) cases of fraud or abuse relating to health insurance coverage offered under such amendment and the resolution of such cases. (2) Annual reports The Comptroller General shall submit to Congress an annual report, after the end of each of the 5 years following the effective date of the amendment made by subsection (a), on the ongoing study conducted under paragraph (1). IV Improving Health Savings Accounts 231. HSA funds for premiums for high deductible health plans (a) In general Subparagraph (C) of section 223(d)(2) of the Internal Revenue Code of 1986, as restored by section 2, is amended by striking or at the end of clause (iii), by striking the period at the end of clause (iv) and inserting , or , and by adding at the end the following: (v) a high deductible health plan if— (I) such plan is not offered in connection with a group health plan, (II) no portion of any premium (within the meaning of applicable premium under section 4980B(f)(4)) for such plan is excludable from gross income under section 106, and (III) the account beneficiary demonstrates, using procedures deemed appropriate by the Secretary, that after payment of the premium for such insurance the balance in the health savings account is at least twice the minimum deductible in effect under subsection (c)(2)(A)(i) which is applicable to such plan. . (b) Effective Date The amendment made by subsection (a) shall apply to premiums for a high deductible health plan for periods beginning after December 31, 2011. 232. Requiring greater coordination between HDHP administrators and HSA account administrators so that enrollees can enroll in both at the same time The Secretary of the Treasury, through the issuance of regulations or other guidance, shall encourage administrators of health plans and trustees of health savings accounts to provide for simultaneous enrollment in high deductible health plans and setup of health savings accounts. 233. Special rule for certain medical expenses incurred before establishment of account (a) In general Subsection (d) of section 223 of the Internal Revenue Code of 1986, as restored by section 2, is amended by redesignating paragraph (4) as paragraph (5) and by inserting after paragraph (3) the following new paragraph: (4) Certain medical expenses incurred before establishment of account treated as qualified (A) In general For purposes of paragraph (2), an expense shall not fail to be treated as a qualified medical expense solely because such expense was incurred before the establishment of the health savings account if such expense was incurred during the 60-day period beginning on the date on which the high deductible health plan is first effective. (B) Special rules For purposes of subparagraph (A)— (i) an individual shall be treated as an eligible individual for any portion of a month for which the individual is described in subsection (c)(1), determined without regard to whether the individual is covered under a high deductible health plan on the 1st day of such month, and (ii) the effective date of the health savings account is deemed to be the date on which the high deductible health plan is first effective after the date of the enactment of this paragraph. . (b) Effective date The amendment made by this section shall apply with respect to insurance purchased after the date of the enactment of this Act in taxable years beginning after such date. V Tax–Related Health Incentives 241. SECA tax deduction for health insurance costs (a) In General Subsection (l) of section 162 of the Internal Revenue Code of 1986 (relating to special rules for health insurance costs of self-employed individuals) is amended by striking paragraph (4) and by redesignating paragraph (5) as paragraph (4). (b) Effective Date The amendment made by this section shall apply to taxable years beginning after December 31, 2010. 242. Deduction for qualified health insurance costs of individuals (a) In General Part VII of subchapter B of chapter 1 of the Internal Revenue Code of 1986 (relating to additional itemized deductions for individuals) is amended by redesignating section 224 as section 225 and by inserting after section 223 the following new section: 224. Costs of qualified health insurance (a) In General In the case of an individual, there shall be allowed as a deduction an amount equal to the amount paid during the taxable year for coverage for the taxpayer, his spouse, and dependents under qualified health insurance. (b) Qualified Health Insurance For purposes of this section, the term qualified health insurance means insurance which constitutes medical care, other than insurance substantially all of the coverage of which is of excepted benefits described in section 9832(c). (c) Special Rules (1) Coordination with medical deduction, etc Any amount paid by a taxpayer for insurance to which subsection (a) applies shall not be taken into account in computing the amount allowable to the taxpayer as a deduction under section 162(l) or 213(a). Any amount taken into account in determining the credit allowed under section 35 shall not be taken into account for purposes of this section. (2) Deduction not allowed for self-employment tax purposes The deduction allowable by reason of this section shall not be taken into account in determining an individual’s net earnings from self-employment (within the meaning of section 1402(a)) for purposes of chapter 2. . (b) Deduction Allowed in Computing Adjusted Gross Income Subsection (a) of section 62 of such Code is amended by inserting before the last sentence the following new paragraph: (22) Costs of qualified health insurance The deduction allowed by section 224. . (c) Clerical Amendment The table of sections for part VII of subchapter B of chapter 1 of such Code is amended by redesignating the item relating to section 224 as an item relating to section 225 and inserting before such item the following new item: Sec. 224. Costs of qualified health insurance. . (d) Effective Date The amendments made by this section shall apply to taxable years beginning after December 31, 2010. C Enacting Real Medical Liability Reform 301. Cap on non-economic damages against health care practitioners When an individual is injured or dies as the result of health care, a person entitled to non-economic damages may not recover, from the class of liable health care practitioners (regardless of the theory of liability), more than $250,000 such damages. 302. Cap on non-economic damages against health care institutions When an individual is injured or dies as the result of health care, a person entitled to non-economic damages may not recover— (1) from any single liable health care institution (regardless of the theory of liability), more than $250,000 such damages; and (2) from the class of liable health care institutions (regardless of the theory of liability), more than $500,000 such damages. 303. Cap, in wrongful death cases, on total damages against any single health care practitioner (a) In general When an individual dies as the result of health care, a person entitled to damages may not recover, from any single liable health care practitioner (regardless of the theory of liability), more than $1,400,000 in total damages. (b) Total damages defined In this section, the term total damages includes compensatory damages, punitive damages, statutory damages, and any other type of damages. (c) Adjustment for inflation For each calendar year after the calendar year of the enactment of this Act, the dollar amount referred to in subsection (a) shall be adjusted to reflect changes in the Consumer Price Index of the Bureau of Labor Statistics of the Department of Labor. The adjustment shall be based on the relationship between— (1) the Consumer Price Index data most recently published as of January 1 of the calendar year of the enactment of this Act; and (2) the Consumer Price Index data most recently published as of January 1 of the calendar year concerned. (d) Applicability of adjustment The dollar amount that applies to a recovery is the dollar amount for the calendar year during which the amount of the recovery is made final. 304. Limitation of insurer liability when insurer rejects certain settlement offers In a civil action, to the extent the civil action seeks damages for the injury or death of an individual as the result of health care, when the insurer of a health care practitioner or health care institution rejects a reasonable settlement offer within policy limits, the insurer is not, by reason of that rejection, liable for damages in an amount that exceeds the liability of the insured. 305. Mandatory jury instruction on cap on damages In a civil action tried to a jury, to the extent the civil action seeks damages for the injury or death of an individual as the result of health care, the court shall instruct the jury that the jury is not to consider whether, or to what extent, a limitation on damages applies. 306. Determination of negligence; mandatory jury instruction (a) In general When an individual is injured or dies as the result of health care, liability for negligence may not be based solely on a bad result. (b) Mandatory jury instruction In a civil action tried to a jury, to the extent the civil action seeks damages for the injury or death of an individual as the result of health care and alleges liability for negligence, the court shall instruct the jury as provided in subsection (a). 307. Expert reports required to be served in civil actions (a) Service required To the extent a pleading filed in a civil action seeks damages against a health care practitioner for the injury or death of an individual as the result of health care, the party filing the pleading shall, not later than 120 days after the date on which the pleading was filed, serve on each party against whom such damages are sought a qualified expert report. (b) Qualified expert report As used in subsection (a), a qualified expert report is a written report of a qualified health care expert that— (1) includes a curriculum vitae for that expert; and (2) sets forth a summary of the expert opinion of that expert as to— (A) the standard of care applicable to that practitioner; (B) how that practitioner failed to meet that standard of care; and (C) the causal relationship between that failure and the injury or death of the individual. (c) Motion To enforce A party not served as required by subsection (a) may move the court to enforce that subsection. On such a motion, the court— (1) shall dismiss, with prejudice, the pleading as it relates to that party; and (2) shall award to that party the attorney fees reasonably incurred by that party to respond to that pleading. (d) Use of expert report (1) In general Except as otherwise provided in this section, a qualified expert report served under subsection (a) may not, in that civil action— (A) be offered by any party as evidence; (B) be used by any party in discovery or any other pretrial proceeding; or (C) be referred to by any party at trial. (2) Violations (A) By other party If paragraph (1) is violated by a party other than the party who served the report, the court shall, on motion of any party or on its own motion, take such measures as the court considers appropriate, which may include the imposition of sanctions. (B) By serving party If paragraph (1) is violated by the party who served the report, paragraph (1) shall no longer apply to any party. 308. Expert opinions relating to physicians may be provided only by actively practicing physicians (a) In general A physician-related opinion may be provided only by an actively practicing physician who is determined by the court to be qualified on the basis of training and experience to render that opinion. (b) Considerations required In determining whether an actively practicing physician is qualified under subsection (a), the court shall, except on good cause shown, consider whether that physician is board-certified, or has other substantial training, in an area of medical practice relevant to the health care to which the opinion relates. (c) Definitions In this section: (1) The term actively practicing physician means an individual who— (A) is licensed to practice medicine in the United States or, if the individual is a defendant providing a physician-related opinion with respect to the health care provided by that defendant, is a graduate of a medical school accredited by the Liaison Committee on Medical Education or the American Osteopathic Association; (B) is practicing medicine when the opinion is rendered, or was practicing medicine when the health care was provided; and (C) has knowledge of the accepted standards of care for the health care to which the opinion relates. (2) The term physician-related opinion means an expert opinion as to any one or more of the following: (A) The standard of care applicable to a physician. (B) Whether a physician failed to meet such a standard of care. (C) Whether there was a causal relationship between such a failure by a physician and the injury or death of an individual. (3) The term practicing medicine includes training residents or students at an accredited school of medicine or osteopathy, and serving as a consulting physician to other physicians who provide direct patient care. 309. Payment of future damages on periodic or accrual basis (a) In general When future damages are awarded against a health care practitioner to a person for the injury or death of an individual as a result of health care, and the present value of those future damages is $100,000 or more, that health care practitioner may move that the court order payment on a periodic or accrual basis of those damages. On such a motion, the court— (1) shall order that payment be made on an accrual basis of future damages described in subsection (b)(1); and (2) may order that payment be made on a periodic or accrual basis of any other future damages that the court considers appropriate. (b) Future damages defined In this section, the term future damages means— (1) the future costs of medical, health care, or custodial services; (2) noneconomic damages, such as pain and suffering or loss of consortium; (3) loss of future earnings; and (4) any other damages incurred after the award is made. 310. Unanimous jury required for punitive or exemplary damages When an individual is injured or dies as the result of health care, a jury may not award punitive or exemplary damages against a health care practitioner or health care institution unless the jury is unanimous with regard to both the liability of that party for such damages and the amount of the award of such damages. 311. Proportionate liability When an individual is injured or dies as the result of health care and a person is entitled to damages for that injury or death, each person responsible is liable only for a proportionate share of the total damages that directly corresponds to that person’s proportionate share of the total responsibility. 312. Defense-initiated settlement process (a) In general In a civil action, to the extent the civil action seeks damages for the injury or death of an individual as the result of health care, a health care practitioner or health care institution against which such damages are sought may serve one or more qualified settlement offers under this section to a person seeking such damages. If the person seeking such damages does not accept such an offer, that person may thereafter serve one or more qualified settlement offers under this section to the party whose offer was not accepted. (b) Qualified settlement offer A qualified settlement offer under this section is an offer, in writing, to settle the matter as between the offeror and the offeree, which— (1) specifies that it is made under this section; (2) states the terms of settlement; and (3) states the deadline within which the offer must be accepted. (c) Effect of offer If the offeree of a qualified settlement offer does not accept that offer, and thereafter receives a judgment at trial that, as between the offeror and the offeree, is significantly less favorable than the terms of settlement in that offer, that offeree is responsible for those litigation costs reasonably incurred, after the deadline stated in the offer, by the offeror to respond to the claims of the offeree. (d) Litigation costs defined In this section, the term litigation costs include court costs, filing fees, expert witness fees, attorney fees, and any other costs directly related to carrying out the litigation. (e) Significantly less favorable defined For purposes of this section, a judgment is significantly less favorable than the terms of settlement if— (1) in the case of an offeree seeking damages, the offeree’s award at trial is less than 80 percent of the value of the terms of settlement; and (2) in the case of an offeree against whom damages are sought, the offeror’s award at trial is more than 120 percent of the value of the terms of settlement. 313. Statute of limitations; statute of repose (a) Statute of limitations When an individual is injured or dies as the result of health care, the statute of limitations shall be as follows: (1) Individuals of age 12 and over If the individual has attained the age of 12 years, the claim must be brought either— (A) within 2 years after the negligence occurred; or (B) within 2 years after the health care on which the claim is based is completed. (2) Individuals under age 12 If the individual has not attained the age of 12 years, the claim must be brought before the individual attains the age of 14 years. (b) Statute of repose When an individual is injured or dies as the result of health care, the statute of repose shall be as follows: The claim must be brought within 10 years after the act or omission on which the claim is based is completed. (c) Tolling (1) Statute of limitations The statute of limitations required by subsection (a) may be tolled if applicable law so provides, except that it may not be tolled on the basis of minority. (2) Statute of repose The statute of repose required by subsection (b) may not be tolled for any reason. 314. Limitation on liability for Good Samaritans providing emergency health care (a) Willful or wanton negligence required A health care practitioner or health care institution that provides emergency health care on a Good Samaritan basis is not liable for damages caused by that care except for willful or wanton negligence or more culpable misconduct. (b) Good Samaritan basis For purposes of this section, care is provided on a Good Samaritan basis if it is not provided for or in expectation of remuneration. Being entitled to remuneration is relevant to, but is not determinative of, whether it is provided for or in expectation of remuneration. 315. Definitions In this division: (1) Health care institution The term health care institution includes institutions such as— (A) an ambulatory surgical center; (B) an assisted living facility; (C) an emergency medical services provider; (D) a home health agency; (E) a hospice; (F) a hospital; (G) a hospital system; (H) an intermediate care facility for the mentally retarded; (I) a nursing home; and (J) an end stage renal disease facility. (2) Health care practitioner The term health care practitioner includes a physician and a physician entity. (3) Physician entity The term physician entity includes— (A) a partnership or limited liability partnership created by a group of physicians; (B) a company created by physicians; and (C) a nonprofit health corporation whose board is composed of physicians. D Protecting the Doctor-Patient Relationship 401. Rule of construction Nothing in this Act shall be construed to interfere with the doctor-patient relationship or the practice of medicine. 402. Repeal of Federal Coordinating Council for Comparative Effectiveness Research Effective on the date of the enactment of this Act, section 804 of the American Recovery and Reinvestment Act of 2009 is repealed. E Incentivizing Wellness and Quality Improvements 501. Incentives for prevention and wellness programs (a) Employee Retirement Income Security Act of 1974 limitation on exception for wellness programs under HIPAA discrimination rules (1) In general Section 702(b)(2) of the Employee Retirement Income Security Act of 1974 ( 29 U.S.C. 1182(b)(2) ), as restored by section 2, is amended by adding after and below subparagraph (B) the following: In applying subparagraph (B), a group health plan (or a health insurance issuer with respect to health insurance coverage) may vary premiums and cost-sharing by up to 50 percent of the value of the benefits under the plan (or coverage) based on participation in a standards-based wellness program. . (2) Effective date The amendment made by paragraph (1) shall apply to plan years beginning more than 1 year after the date of the enactment of this Act. (b) Conforming amendments to PHSA (1) Group market rules (A) In general Section 2702(b)(2) of the Public Health Service Act ( 42 U.S.C. 300gg–1(b)(2) ), as restored by section 2, is amended by adding after and below subparagraph (B) the following: In applying subparagraph (B), a group health plan (or a health insurance issuer with respect to health insurance coverage) may vary premiums and cost-sharing by up to 50 percent of the value of the benefits under the plan (or coverage) based on participation in a standards-based wellness program. . (B) Effective date The amendment made by subparagraph (A) shall apply to plan years beginning more than 1 year after the date of the enactment of this Act. (2) Individual market rules relating to guaranteed availability (A) In general Section 2741(f) of the Public Health Service Act ( 42 U.S.C. 300gg–1(b)(2) ), as restored by section 2, is amended by adding after and below paragraph (1) the following: In applying paragraph (2), a health insurance issuer may vary premiums and cost-sharing under health insurance coverage by up to 50 percent of the value of the benefits under the coverage based on participation in a standards-based wellness program. . (B) Effective date The amendment made by paragraph (1) shall apply to health insurance coverage offered or renewed on and after the date that is 1 year after the date of the enactment of this Act. (c) Conforming amendments to IRC (1) In general Section 9802(b)(2) of the Internal Revenue Code of 1986,as restored by section 2, is amended by adding after and below subparagraph (B) the following: In applying subparagraph (B), a group health plan (or a health insurance issuer with respect to health insurance coverage) may vary premiums and cost-sharing by up to 50 percent of the value of the benefits under the plan (or coverage) based on participation in a standards-based wellness program. . (2) Effective date The amendment made by paragraph (1) shall apply to plan years beginning more than 1 year after the date of the enactment of this Act. F Protecting Taxpayers 601. Permanently prohibiting taxpayer funded abortions and ensuring conscience protections Title 1 of the United States Code is amended by adding at the end the following new chapter: 4 Permanently prohibiting taxpayer funded abortions and ensuring conscience protections 301. Prohibition on funding for abortions No funds authorized or appropriated by Federal law, and none of the funds in any trust fund to which funds are authorized or appropriated by Federal law, shall be expended for any abortion. 302. Prohibition on funding for health benefits plans that cover abortion None of the funds authorized or appropriated by federal law, and none of the funds in any trust fund to which funds are authorized or appropriated by federal law, shall be expended for a health benefits plan that includes coverage of abortion. 303. Treatment of abortions related to rape, incest, or preserving the life of the mother The limitations established in sections 301 and 302 shall not apply to an abortion— (1) if the pregnancy is the result of an act of rape or incest; or (2) in the case where a woman suffers from a physical disorder, physical injury, or physical illness that would, as certified by a physician, place the woman in danger of death unless an abortion is performed, including a life-endangering physical condition caused by or arising from the pregnancy itself. 304. Construction relating to supplemental coverage Nothing in this chapter shall be construed as prohibiting any individual, entity, or State or locality from purchasing separate supplemental abortion plan or coverage that includes abortion so long as such plan or coverage is paid for entirely using only funds not authorized or appropriated by federal law and such plan or coverage shall not be purchased using matching funds required for a federally subsidized program, including a State’s or locality’s contribution of Medicaid matching funds. 305. Construction relating to the use of non-Federal funds for health coverage Nothing in this chapter shall be construed as restricting the ability of any managed care provider or other organization from offering abortion coverage or the ability of a State to contract separately with such a provider or organization for such coverage with funds not authorized or appropriated by federal law and such plan or coverage shall not be purchased using matching funds required for a federally subsidized program, including a State’s or locality’s contribution of Medicaid matching funds. 306. No government discrimination against certain health care entities (a) In general No funds authorized or appropriated by federal law may be made available to a Federal agency or program, or to a State or local government, if such agency, program, or government subjects any institutional or individual health care entity to discrimination on the basis that the health care entity does not provide, pay for, provide coverage of, or refer for abortions. (b) Health care entity defined For purposes of this section, the term health care entity includes an individual physician or other health care professional, a hospital, a provider-sponsored organization, a health maintenance organization, a health insurance plan, or any other kind of health care facility, organization, or plan. . 602. Improved enforcement of the Medicare and Medicaid secondary payer provisions (a) Medicare (1) In general The Secretary of Health and Human Services, in coordination with the Inspector General of the Department of Health and Human Services, shall provide through the Coordination of Benefits Contractor for the identification of instances where the Medicare program should be, but is not, acting as a secondary payer to an individual’s private health benefits coverage under section 1862(b) of the Social Security Act ( 42 U.S.C. 1395y(b) ). (2) Updating procedures The Secretary shall update procedures for identifying and resolving credit balance situations which occur under the Medicare program when payment under such title and from other health benefit plans exceed the providers’ charges or the allowed amount. (3) Report on improved enforcement Not later than 1 year after the date of the enactment of this Act, the Secretary shall submit a report to Congress on progress made in improved enforcement of the Medicare secondary payer provisions, including recoupment of credit balances. (b) Medicaid Section 1903 of the Social Security Act ( 42 U.S.C. 1396b ) is amended by adding at the end the following new subsection: (aa) Enforcement of payer of last resort provisions (1) Submission of state plan amendment Each State shall submit, not later than 1 year after the date of the enactment of this subsection, a State plan amendment that details how the State will become fully compliant with the requirements of section 1902(a)(25). (2) Bonus for compliance If a State submits a timely State plan amendment under paragraph (1) that the Secretary determines provides for full compliance of the State with the requirements of section 1902(a)(25), the Secretary shall provide for an additional payment to the State of $1,000,000. If a State certifies, to the Secretary’s satisfaction, that it is already fully compliant with such requirements, such amount shall be increased to $2,000,000. (3) Reduction for noncompliance If a State does not submit such an amendment, the Secretary shall reduce the Federal medical assistance percentage otherwise applicable under this title by 1 percentage point until the State submits such an amendment. (4) Ongoing reduction If at any time the Secretary determines that a State is not in compliance with section 1902(a)(25), regardless of the status of the State’s submission of a State plan amendment under this subsection or previous determinations of compliance such requirements, the Secretary shall reduce the Federal medical assistance percentage otherwise applicable under this title for the State by 1 percentage point during the period of non-compliance as determined by the Secretary. . 603. Strengthen Medicare provider enrollment standards and safeguards (a) Protecting against the fraudulent use of Medicare provider numbers Subject to subsection (c)(2)— (1) Screening new providers As a condition of a provider of services or a supplier, including durable medical equipment suppliers and home health agencies, applying for the first time for a provider number under the Medicare program under title XVIII of the Social Security Act and before granting billing privileges under such title, the Secretary of Health and Human Services shall screen the provider or supplier for a criminal background or other financial or operational irregularities through fingerprinting, licensure checks, site-visits, other database checks. (2) Application fees The Secretary shall impose an application charge on such a provider or supplier in order to cover the Secretary’s costs in performing the screening required under paragraph (1) and that is revenue neutral to the Federal government. (3) Provisional approval During an initial, provisional period (specified by the Secretary) in which such a provider or supplier has been issued such a number, the Secretary shall provide enhanced oversight of the activities of such provider or supplier under the Medicare program, such as through prepayment review and payment limitations. (4) Penalties for false statements In the case of a provider or supplier that makes a false statement in an application for such a number, the Secretary may exclude the provider or supplier from participation under the Medicare program, or may impose a civil money penalty (in the amount described in section 1128A(a)(4) of the Social Security Act), in the same manner as the Secretary may impose such an exclusion or penalty under sections 1128 and 1128A, respectively, of such Act in the case of knowing presentation of a false claim described in section 1128A(a)(1)(A) of such Act. (5) Disclosure requirements With respect to approval of such an application, the Secretary— (A) shall require applicants to disclose previous affiliation with enrolled entities that have uncollected debt related to the Medicare or Medicaid programs; (B) may deny approval if the Secretary determines that these affiliations pose undue risk to the Medicare or Medicaid program, subject to an appeals process for the applicant as determined by the Secretary; and (C) may implement enhanced safeguards (such as surety bonds). (b) Moratoria The Secretary of Health and Human Services may impose moratoria on approval of provider and supplier numbers under the Medicare program for new providers of services and suppliers as determined necessary to prevent or combat fraud a period of delay for any one applicant cannot exceed 30 days unless cause is shown by the Secretary. (c) Funding (1) In general There are authorized to be appropriated to carry out this section such sums as may be necessary. (2) Condition The provisions of paragraphs (1) and (2) of subsection (a) shall not apply unless and until funds are appropriated to carry out such provisions. 604. Tracking banned providers across State lines (a) Greater coordination The Secretary of Health and Human Services shall provide for increased coordination between the Administrator of the Centers for Medicare & Medicaid Services (in this section referred to as CMS ) and its regional offices to ensure that providers of services and suppliers that have operated in one State and are excluded from participation in the Medicare program are unable to begin operation and participation in the Medicare program in another State. (b) Improved information systems (1) In general The Secretary shall improve information systems to allow greater integration between databases under the Medicare program so that— (A) Medicare administrative contractors, fiscal intermediaries, and carriers have immediate access to information identifying providers and suppliers excluded from participation in the Medicare and Medicaid program and other Federal health care programs; and (B) such information can be shared across Federal health care programs and agencies, including between the Departments of Health and Human Services, the Social Security Administration, the Department of Veterans Affairs, the Department of Defense, the Department of Justice, and the Office of Personnel Management. (c) Medicare/Medicaid One PI database The Secretary shall implement a database that includes claims and payment data for all components of the Medicare program and the Medicaid program. (d) Authorizing expanded data matching Notwithstanding any provision of the Computer Matching and Privacy Protection Act of 1988 to the contrary— (1) the Secretary and the Inspector General in the Department of Health and Human Services may perform data matching of data from the Medicare program with data from the Medicaid program; and (2) the Commissioner of Social Security and the Secretary may perform data matching of data of the Social Security Administration with data from the Medicare and Medicaid programs. (e) Consolidation of databases The Secretary shall consolidate and expand into a centralized database for individuals and entities that have been excluded from Federal health care programs the Healthcare Integrity and Protection Data Bank, the National Practitioner Data Bank, the List of Excluded Individuals/Entities, and a national patient abuse/neglect registry. (f) Comprehensive provider database (1) Establishment The Secretary shall establish a comprehensive database that includes information on providers of services, suppliers, and related entities participating in the Medicare program, the Medicaid program, or both. Such database shall include, information on ownership and business relationships, history of adverse actions, results of site visits or other monitoring by any program. (2) Use Prior to issuing a provider or supplier number for an entity under the Medicare program, the Secretary shall obtain information on the entity from such database to assure the entity qualifies for the issuance of such a number. (g) Comprehensive sanctions database The Secretary shall establish a comprehensive sanctions database on sanctions imposed on providers of services, suppliers, and related entities. Such database shall be overseen by the Inspector General of the Department of Health and Human Services and shall be linked to related databases maintained by State licensure boards and by Federal or State law enforcement agencies. (h) Access to claims and payment databases The Secretary shall ensure that the Inspector General of the Department of Health and Human Services and Federal law enforcement agencies have direct access to all claims and payment databases of the Secretary under the Medicare or Medicaid programs. (i) Civil money penalties for submission of erroneous information In the case of a provider of services, supplier, or other entity that submits erroneous information that serves as a basis for payment of any entity under the Medicare or Medicaid program, the Secretary may impose a civil money penalty of not to exceed $50,000 for each such erroneous submission. A civil money penalty under this subsection shall be imposed and collected in the same manner as a civil money penalty under subsection (a) of section 1128A of the Social Security Act is imposed and collected under that section.