II 117th CONGRESS 1st Session S. 754 IN THE SENATE OF THE UNITED STATES March 16, 2021 Ms. Baldwin (for herself, Ms. Ernst , Mr. Brown , Ms. Murkowski , Ms. Klobuchar , Mr. Marshall , Mrs. Shaheen , Mr. Wicker , Mr. Whitehouse , Mr. Tillis , Ms. Stabenow , Mr. Cramer , Mr. Van Hollen , Mr. Boozman , Mr. Peters , Ms. Collins , Mr. Markey , Mrs. Capito , Mr. Booker , Mr. Graham , Ms. Smith , Mr. Grassley , Ms. Sinema , Mr. Moran , Mr. Murphy , Mr. Daines , Mr. Blumenthal , Mr. Braun , and Mr. Reed ) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions A BILL To provide health insurance benefits for outpatient and inpatient items and services related to the diagnosis and treatment of a congenital anomaly or birth defect.

1. Short title This Act may be cited as the Ensuring Lasting Smiles Act . 2. Coverage of congenital anomaly or birth defect (a) Public Health Service Act Amendments Part D of title XXVII of the Public Health Service Act ( 42 U.S.C. 300gg–111 et seq.) is amended by adding at the end the following new section: 2799A–11. Standards relating to benefits for congenital anomaly or birth defect (a) Requirements for care and Reconstructive Treatment (1) In general A group health plan, and a health insurance issuer offering group or individual health insurance coverage, shall provide coverage for outpatient and inpatient items and services related to the diagnosis and treatment of a congenital anomaly or birth defect. (2) Requirements (A) In general Coverage provided under paragraph (1) shall include any medically necessary item or service to functionally improve, repair, or restore any body part to achieve normal body functioning or appearance, as determined by the treating physician (as defined in section 1861(r) of the Social Security Act), due to congenital anomaly or birth defect. (B) Financial requirements and treatment requirements Any coverage provided under paragraph (1) under a group health plan or individual or group health insurance coverage offered by a health insurance issuer may be subject to coverage limits (such as medical necessity, pre-authorization, or pre-certification) and cost-sharing requirements (such as coinsurance, copayments, and deductibles), as required by the plan or issuer, that are no more restrictive than the predominant coverage limits and cost-sharing requirements, respectively, applied to substantially all medical and surgical benefits covered by the plan (or coverage). (3) Treatment defined In this section: (A) In general Except as provided in subparagraph (B), the term treatment includes, with respect to a group health plan or group or individual health insurance coverage offered by a health insurance issuer, inpatient and outpatient items and services performed to improve, repair, or restore bodily function (or performed to approximate a normal appearance), due to a congenital anomaly or birth defect, and includes treatment to any and all missing or abnormal body parts (including teeth, the oral cavity, and their associated structures) that would otherwise be provided under the plan or coverage for any other injury or sickness, including— (i) any items or services, including inpatient and outpatient care, reconstructive services and procedures, and complications thereof; (ii) adjunctive dental, orthodontic, or prosthodontic support from birth until the medical or surgical treatment of the defect or anomaly has been completed, including ongoing or subsequent treatment required to maintain function or approximate a normal appearance; (iii) procedures that materially improve, repair, or restore bodily function; and (iv) procedures for secondary conditions and follow-up treatment associated with the underlying congenital anomaly or birth defect. (B) Exception The term treatment shall not include cosmetic surgery performed to reshape normal structures of the body to improve appearance or self-esteem. (b) Notice A group health plan under this part shall comply with the notice requirement under section 714(c) of the Employee Retirement Income Security Act of 1974 with respect to the requirements of this section as if such section applied to such plan. . (b) ERISA amendments (1) In general Subpart B of part 7 of subtitle B of title I of the Employee Retirement Income Security Act of 1974 is amended by adding at the end the following: 726. Standards relating to benefits for congenital anomaly or birth defect (a) Requirements for care and Reconstructive Treatment (1) In general A group health plan, and a health insurance issuer offering group health insurance coverage, shall provide coverage for outpatient and inpatient items and services related to the diagnosis and treatment of a congenital anomaly or birth defect. (2) Requirements (A) In general Coverage provided under paragraph (1) shall include any medically necessary item or service to functionally improve, repair, or restore any body part to achieve normal body functioning or appearance, as determined by the treating physician (as defined in section 1861(r) of the Social Security Act), due to congenital anomaly or birth defect. (B) Financial requirements and treatment requirements Any coverage provided under paragraph (1) under a group health plan or group health insurance coverage offered by a health insurance issuer may be subject to coverage limits (such as medical necessity, pre-authorization, or pre-certification) and cost-sharing requirements (such as coinsurance, copayments, and deductibles), as required by the plan or issuer, that are no more restrictive than the predominant coverage limits and cost-sharing requirements, respectively, applied to substantially all medical and surgical benefits covered by the plan (or coverage). (3) Treatment defined In this section: (A) In general Except as provided in subparagraph (B), the term treatment includes, with respect to a group health plan or group health insurance coverage offered by a health insurance issuer, inpatient and outpatient items and services performed to improve, repair, or restore bodily function (or performed to approximate a normal appearance), due to a congenital anomaly or birth defect, and includes treatment to any and all missing or abnormal body parts (including teeth, the oral cavity, and their associated structures) that would otherwise be provided under the plan or coverage for any other injury or sickness, including— (i) any items or services, including inpatient and outpatient care, reconstructive services and procedures, and complications thereof; (ii) adjunctive dental, orthodontic, or prosthodontic support from birth until the medical or surgical treatment of the defect or anomaly has been completed, including ongoing or subsequent treatment required to maintain function or approximate a normal appearance; (iii) procedures that materially improve, repair, or restore bodily function; and (iv) procedures for secondary conditions and follow-up treatment associated with the underlying congenital anomaly or birth defect. (B) Exception The term treatment shall not include cosmetic surgery performed to reshape normal structures of the body to improve appearance or self-esteem. (b) Notice A group health plan under this part shall comply with the notice requirement under section 714(c) with respect to the requirements of this section as if such section applied to such plan. . (2) Technical amendments (A) Section 732(a) of such Act ( 29 U.S.C. 1191a(a) ) is amended by striking section 711 and inserting sections 711 and 726 . (B) The table of contents in section 1 of such Act is amended by inserting after the item relating to section 725 the following new item: Sec. 726. Standards relating to benefits for congenital anomaly or birth defect. (c) Internal Revenue Code amendments (1) In general Subchapter B of chapter 100 of the Internal Revenue Code of 1986 is amended by adding at the end the following: 9826. Standards relating to benefits for congenital anomaly or birth defect (a) Requirements for care and Reconstructive Treatment (1) In general A group health plan shall provide coverage for outpatient and inpatient items and services related to the diagnosis and treatment of a congenital anomaly or birth defect. (2) Requirements (A) In general Coverage provided under paragraph (1) shall include any medically necessary item or service to functionally improve, repair, or restore any body part to achieve normal body functioning or appearance, as determined by the treating physician (as defined in section 1861(r) of the Social Security Act), due to congenital anomaly or birth defect. (B) Financial requirements and treatment requirements Any coverage provided under paragraph (1) under a group health plan may be subject to coverage limits (such as medical necessity, pre-authorization, or pre-certification) and cost-sharing requirements (such as coinsurance, copayments, and deductibles), as required by the plan, that are no more restrictive than the predominant coverage limits and cost-sharing requirements, respectively, applied to substantially all medical and surgical benefits covered by the plan. (3) Treatment defined In this section: (A) In general Except as provided in subparagraph (B), the term treatment includes, with respect to a group health plan, inpatient and outpatient items and services performed to improve, repair, or restore bodily function (or performed to approximate a normal appearance), due to a congenital anomaly or birth defect, and includes treatment to any and all missing or abnormal body parts (including teeth, the oral cavity, and their associated structures) that would otherwise be provided under the plan for any other injury or sickness, including— (i) any items or services, including inpatient and outpatient care, reconstructive services and procedures, and complications thereof; (ii) adjunctive dental, orthodontic, or prosthodontic support from birth until the medical or surgical treatment of the defect or anomaly has been completed, including ongoing or subsequent treatment required to maintain function or approximate a normal appearance; (iii) procedures that materially improve, repair, or restore bodily function; and (iv) procedures for secondary conditions and follow-up treatment associated with the underlying congenital anomaly or birth defect. (B) Exception The term treatment shall not include cosmetic surgery performed to reshape normal structures of the body to improve appearance or self-esteem. (b) Notice A group health plan under this part shall comply with the notice requirement under section 714(c) of the Employee Retirement Income Security Act of 1974 with respect to the requirements of this section as if such section applied to such plan. . (2) Clerical amendment The table of sections for such subchapter is amended by adding at the end the following new item: Sec. 9826. Standards relating to benefits for congenital anomaly or birth defect. . (d) Rule of construction A group health plan or health insurance issuer shall provide the benefits described in section 2799A–11 of the Public Health Service Act (as added by subsection (a)), section 726 of the Employee Retirement Income Security Act of 1974 (as added by subsection (b)), and section 9826 of the Internal Revenue Code of 1986 (as added by subsection (c)) under the terms of such plan or health insurance coverage offered by such issuer. (e) Clarifying amendment regarding application to grandfathered plans Section 1251(a)(4)(A) of the Patient Protection and Affordable Care Act ( 42 U.S.C. 18011(a)(4)(A) ), is amended by adding at the end the following: (v) Section 2799A–11 (relating to standards relating to benefits for congenital anomaly or birth defect), as added by section 2(a) of the Ensuring Lasting Smiles Act . . (f) Effective date The amendments made by this section shall apply with respect to group health plans for plan years beginning on or after January 1, 2022, and with respect to health insurance coverage offered, sold, issued, renewed, in effect, or operated in the individual market on or after such date. (g) Coordinated regulations Section 104(1) of the Health Insurance Portability and Accountability Act of 1996 is amended by striking this subtitle (and the amendments made by this subtitle and section 401) and inserting the provisions of part 7 of subtitle B of title I of the Employee Retirement Income Security Act of 1974, the provisions of parts A, C, and D of title XXVII of the Public Health Service Act, and chapter 100 of the Internal Revenue Code of 1986 .