HR 111
112th CONGRESS
1st Session
H. R. 111
To require that health plans provide coverage for a minimum hospital
stay for mastectomies, lumpectomies, and lymph node dissection for the treatment
of breast cancer and coverage for secondary consultations.
IN THE HOUSE OF REPRESENTATIVES
January 5, 2011
Ms. DELAURO (for herself, Mr. BARTON of Texas, Mr. ACKERMAN, Mr. BACA, Ms.
BALDWIN, Mr. BARROW, Ms. BERKLEY, Mr. BERMAN, Mr. BISHOP of Georgia, Mr. BOREN,
Mr. BRALEY of Iowa, Ms. BROWN of Florida, Mrs. CAPPS, Mr. CARSON of Indiana,
Ms. CASTOR of Florida, Mr. CLEAVER, Mr. CLYBURN, Mr. COHEN, Mr. CONNOLLY of
Virginia, Mr. CRITZ, Mr. DINGELL, Mr. DONNELLY of Indiana, Ms. EDWARDS, Mr.
ELLISON, Mr. ENGEL, Mr. FARR, Mr. FRANK of Massachusetts, Ms. FUDGE, Mr. GRIJALVA,
Mr. HIMES, Ms. HIRONO, Mr. HOLT, Mr. ISRAEL, Mr. JACKSON of Illinois, Ms.
JACKSON LEE of Texas, Mr. JOHNSON of Georgia, Mr. JONES, Mr. KILDEE, Mr. KIND,
Mr. KISSELL, Mr. LANGEVIN, Mr. LARSEN of Washington, Mr. LARSON of Connecticut,
Ms. LEE of California, Mr. LEVIN, Mr. LEWIS of Georgia, Mr. LOEBSACK, Ms.
ZOE LOFGREN of California, Mrs. LOWEY, Mrs. MALONEY, Mrs. MCCARTHY of New
York, Mr. MCDERMOTT, Mr. MCGOVERN, Mr. MCINTYRE, Mr. MEEKS, Mr. MILLER of
North Carolina, Ms. MOORE, Mr. MORAN, Mr. MURPHY of Connecticut, Mr. NADLER,
Mrs. NAPOLITANO, Mr. NEAL, Mr. OLVER, Mr. PASTOR of Arizona, Mr. PAYNE, Mr.
RANGEL, Ms. ROYBAL-ALLARD, Mr. RUPPERSBERGER, Mr. RUSH, Mr. RYAN of Ohio,
Mr. SABLAN, Ms. LINDA T. SANCHEZ of California, Ms. SCHAKOWSKY, Mr. SCHIFF,
Mrs. SCHMIDT, Ms. SCHWARTZ, Mr. DAVID SCOTT of Georgia, Mr. SERRANO, Mr. SHERMAN,
Ms. SLAUGHTER, Ms. SPEIER, Mr. STARK, Ms. SUTTON, Mr. TOWNS, Mr. VAN HOLLEN,
Ms. WASSERMAN SCHULTZ, Mr. WEINER, Mr. WELCH, Mr. WU, Mr. YARMUTH, Mr. YOUNG
of Alaska, Ms. PINGREE of Maine, Mr. SMITH of Washington, Mr. PRICE of North
Carolina, Mr. CHANDLER, and Ms. EDDIE BERNICE JOHNSON of Texas) introduced
the following bill; which was referred to the Committee on Energy and Commerce,
and in addition to the Committees on Ways and Means and Education and the
Workforce, 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 require that health plans provide coverage for a minimum hospital
stay for mastectomies, lumpectomies, and lymph node dissection for the treatment
of breast cancer and coverage for secondary consultations.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Breast Cancer Patient Protection Act of 2011'.
SEC. 2. FINDINGS.
Congress finds the following:
(1) According to the American Cancer Society, excluding cancers of the skin,
breast cancer is the most frequently diagnosed cancer in women.
(2) According to the American Cancer Society, an estimated 40,480 women
and 450 men died from breast cancer in 2008.
(3) According to the American Cancer Society, in 2008 an estimated 182,460
new cases of invasive breast cancer were diagnosed in women, and an estimated
1,990 invasive breast cancer cases were diagnosed in men; and in addition,
an estimated 67,770 new cases of in situ breast cancer occurred in women
in 2008, and of these, approximately 85 percent were ductal carcinoma in
situ.
(4) According to the American Cancer Society, most breast cancer patients
undergo some type of surgical treatment, which may involve lumpectomy (surgical
removal of the tumor with clear margins) or mastectomy (surgical removal
of the breast) with removal of some of the axillary (underarm) lymph nodes.
(5) The offering and operation of health plans affect commerce among the
States.
(6) Health care providers located in a State serve patients who reside in
the State and patients who reside in other States.
(7) In order to provide for uniform treatment of health care providers and
patients among the States, it is necessary to cover health plans operating
in one State as well as health plans operating among the several States.
(8) Research has indicated that treatment for breast cancer varies according
to type of insurance coverage and State of residence.
(9) Currently, 20 States mandate minimum inpatient coverage after a patient
undergoes a mastectomy.
(10) Breast cancer patients have reported adverse outcomes, including infection
and inadequately controlled pain, resulting from premature hospital discharge
following breast cancer surgery.
SEC. 3. AMENDMENTS TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974.
(a) In General- Subpart B of part 7 of subtitle B of title I of the Employee
Retirement Income Security Act of 1974 (29 U.S.C. 1185 et seq.) is amended
by adding at the end the following:
`SEC. 716. REQUIRED COVERAGE FOR MINIMUM HOSPITAL STAY FOR MASTECTOMIES,
LUMPECTOMIES, AND LYMPH NODE DISSECTIONS FOR THE TREATMENT OF BREAST CANCER
AND COVERAGE FOR SECONDARY CONSULTATIONS.
`(1) IN GENERAL- A group health plan, and a health insurance issuer providing
health insurance coverage in connection with a group health plan, that provides
medical and surgical benefits shall ensure that inpatient (and in the case
of a lumpectomy, outpatient) coverage and radiation therapy is provided
for breast cancer treatment. Such plan or coverage may not--
`(A) insofar as the attending physician, in consultation with the patient,
determines it to be medically necessary--
`(i) restrict benefits for any hospital length of stay in connection
with a mastectomy or breast conserving surgery (such as a lumpectomy)
for the treatment of breast cancer to less than 48 hours; or
`(ii) restrict benefits for any hospital length of stay in connection
with a lymph node dissection for the treatment of breast cancer to less
than 24 hours; or
`(B) require that a provider obtain authorization from the plan or the
issuer for prescribing any length of stay required under this paragraph.
`(2) EXCEPTION- Nothing in this section shall be construed as requiring
the provision of inpatient coverage if the attending physician, in consultation
with the patient, determines that either a shorter period of hospital stay,
or outpatient treatment, is medically appropriate.
`(b) Prohibition on Certain Modifications- In implementing the requirements
of this section, a group health plan, and a health insurance issuer providing
health insurance coverage in connection with a group health plan, may not
modify the terms and conditions of coverage based on the determination by
a participant or beneficiary to request less than the minimum coverage required
under subsection (a).
`(c) Notice- A group health plan, and a health insurance issuer providing
health insurance coverage in connection with a group health plan, shall provide
notice to each participant and beneficiary under such plan regarding the coverage
required by this section in accordance with regulations promulgated by the
Secretary. Such notice shall be in writing and prominently positioned in the
summary of the plan made available or distributed by the plan or issuer and
shall be transmitted--
`(1) in the next mailing made by the plan or issuer to the participant or
beneficiary; or
`(2) as part of any yearly informational packet sent to the participant
or beneficiary;
`(d) Secondary Consultations-
`(1) IN GENERAL- A group health plan, and a health insurance issuer providing
health insurance coverage in connection with a group health plan, that provides
coverage with respect to medical and surgical services provided in relation
to the diagnosis and treatment of cancer shall ensure that coverage is provided
for secondary consultations, on terms and conditions that are no more restrictive
than those applicable to the initial consultations, by specialists in the
appropriate medical fields (including pathology, radiology, and oncology)
to confirm or refute such diagnosis. Such plan or issuer shall ensure that
coverage is provided for such secondary consultation whether such consultation
is based on a positive or negative initial diagnosis. In any case in which
the attending physician certifies in writing that services necessary for
such a secondary consultation are not sufficiently available from specialists
operating under the plan with respect to whose services coverage is otherwise
provided under such plan or by such issuer, such plan or issuer shall ensure
that coverage is provided with respect to the services necessary for the
secondary consultation with any other specialist selected by the attending
physician for such purpose at no additional cost to the individual beyond
that which the individual would have paid if the specialist was participating
in the network of the plan.
`(2) EXCEPTION- Nothing in paragraph (1) shall be construed as requiring
the provision of secondary consultations where the patient determines not
to seek such a consultation.
`(e) Prohibition on Penalties or Incentives- A group health plan, and a health
insurance issuer providing health insurance coverage in connection with a
group health plan, may not--
`(1) penalize or otherwise reduce or limit the reimbursement of a provider
or specialist because the provider or specialist provided care to a participant
or beneficiary in accordance with this section;
`(2) provide financial or other incentives to a physician or specialist
to induce the physician or specialist to keep the length of inpatient stays
of patients following a mastectomy, lumpectomy, or a lymph node dissection
for the treatment of breast cancer below certain limits or to limit referrals
for secondary consultations; or
`(3) provide financial or other incentives to a physician or specialist
to induce the physician or specialist to refrain from referring a participant
or beneficiary for a secondary consultation that would otherwise be covered
by the plan or coverage involved under subsection (d).'.
(b) Clerical Amendment- The table of contents in section 1 of the Employee
Retirement Income Security Act of 1974 is amended by inserting after the item
relating to section 715 the following:
`Sec. 716. Required coverage for minimum hospital stay for mastectomies,
lumpectomies, and lymph node dissections for the treatment of breast cancer
and coverage for secondary consultations.'.
(1) IN GENERAL- The amendments made by this section shall apply with respect
to plan years beginning on or after the date that is 90 days after the date
of enactment of this Act.
(2) SPECIAL RULE FOR COLLECTIVE BARGAINING AGREEMENTS- In the case of a
group health plan maintained pursuant to 1 or more collective bargaining
agreements between employee representatives and 1 or more employers ratified
before the date of enactment of this Act, the amendments made by this section
shall not apply to plan years beginning before the date on which the last
collective bargaining agreements relating to the plan terminates (determined
without regard to any extension thereof agreed to after the date of enactment
of this Act). For purposes of this paragraph, any plan amendment made pursuant
to a collective bargaining agreement relating to the plan which amends the
plan solely to conform to any requirement added by this section shall not
be treated as a termination of such collective bargaining agreement.
SEC. 4. AMENDMENTS TO THE PUBLIC HEALTH SERVICE ACT.
(a) In General- Title XXVII of the Public Health Service Act is amended by
inserting after section 2728 of such Act (42 U.S.C. 300gg-28), as redesignated
by section 1001(2) of the Patient Protection and Affordable Care Act (Public
Law 111-148), the following:
`SEC. 2729. REQUIRED COVERAGE FOR MINIMUM HOSPITAL STAY FOR MASTECTOMIES,
LUMPECTOMIES, AND LYMPH NODE DISSECTIONS FOR THE TREATMENT OF BREAST CANCER
AND COVERAGE FOR SECONDARY CONSULTATIONS.
`(1) IN GENERAL- A group health plan, and a health insurance issuer providing
group or individual health insurance coverage, that provides medical and
surgical benefits shall ensure that inpatient (and in the case of a lumpectomy,
outpatient) coverage and radiation therapy is provided for breast cancer
treatment. Such plan or coverage may not--
`(A) insofar as the attending physician, in consultation with the patient,
determines it to be medically necessary--
`(i) restrict benefits for any hospital length of stay in connection
with a mastectomy or breast conserving surgery (such as a lumpectomy)
for the treatment of breast cancer to less than 48 hours; or
`(ii) restrict benefits for any hospital length of stay in connection
with a lymph node dissection for the treatment of breast cancer to less
than 24 hours; or
`(B) require that a provider obtain authorization from the plan or the
issuer for prescribing any length of stay required under this paragraph.
`(2) EXCEPTION- Nothing in this section shall be construed as requiring
the provision of inpatient coverage if the attending physician, in consultation
with the patient, determines that either a shorter period of hospital stay,
or outpatient treatment, is medically appropriate.
`(b) Prohibition on Certain Modifications- In implementing the requirements
of this section, a group health plan, and a health insurance issuer providing
group or individual health insurance coverage, may not modify the terms and
conditions of coverage based on the determination by a participant or beneficiary
to request less than the minimum coverage required under subsection (a).
`(c) Notice- A group health plan, and a health insurance issuer providing
group or individual health insurance coverage, shall provide notice to each
participant and beneficiary under such plan or coverage regarding the coverage
required by this section in accordance with regulations promulgated by the
Secretary. Such notice shall be in writing and prominently positioned in the
summary of the plan or coverage made available or distributed by the plan
or issuer and shall be transmitted--
`(1) in the next mailing made by the plan or issuer to the participant or
beneficiary; or
`(2) as part of any yearly informational packet sent to the participant
or beneficiary;
`(d) Secondary Consultations-
`(1) IN GENERAL- A group health plan, and a health insurance issuer providing
group or individual health insurance coverage, that provides coverage with
respect to medical and surgical services provided in relation to the diagnosis
and treatment of cancer shall ensure that coverage is provided for secondary
consultations, on terms and conditions that are no more restrictive than
those applicable to the initial consultations, by specialists in the appropriate
medical fields (including pathology, radiology, and oncology) to confirm
or refute such diagnosis. Such plan or issuer shall ensure that coverage
is provided for such secondary consultation whether such consultation is
based on a positive or negative initial diagnosis. In any case in which
the attending physician certifies in writing that services necessary for
such a secondary consultation are not sufficiently available from specialists
operating under the plan or coverage with respect to whose services coverage
is otherwise provided under such plan or by such issuer, such plan or issuer
shall ensure that coverage is provided with respect to the services necessary
for the secondary consultation with any other specialist selected by the
attending physician for such purpose at no additional cost to the individual
beyond that which the individual would have paid if the specialist was participating
in the network of the plan.
`(2) EXCEPTION- Nothing in paragraph (1) shall be construed as requiring
the provision of secondary consultations where the patient determines not
to seek such a consultation.
`(e) Prohibition on Penalties or Incentives- A group health plan, and a health
insurance issuer providing group or individual health insurance coverage,
may not--
`(1) penalize or otherwise reduce or limit the reimbursement of a provider
or specialist because the provider or specialist provided care to a participant
or beneficiary in accordance with this section;
`(2) provide financial or other incentives to a physician or specialist
to induce the physician or specialist to keep the length of inpatient stays
of patients following a mastectomy, lumpectomy, or a lymph node dissection
for the treatment of breast cancer below certain limits or to limit referrals
for secondary consultations; or
`(3) provide financial or other incentives to a physician or specialist
to induce the physician or specialist to refrain from referring a participant
or beneficiary for a secondary consultation that would otherwise be covered
by the plan or coverage involved under subsection (d).'.
(1) IN GENERAL- The amendments made by this section shall apply with respect
to plan years beginning on or after 90 days after the date of enactment
of this Act.
(2) SPECIAL RULE FOR COLLECTIVE BARGAINING AGREEMENTS- In the case of a
group health plan maintained pursuant to 1 or more collective bargaining
agreements between employee representatives and 1 or more employers ratified
before the date of enactment of this Act, the amendments made by this section
shall not apply to plan years beginning before the date on which the last
collective bargaining agreements relating to the plan terminates (determined
without regard to any extension thereof agreed to after the date of enactment
of this Act). For purposes of this paragraph, any plan amendment made pursuant
to a collective bargaining agreement relating to the plan which amends the
plan solely to conform to any requirement added by this section shall not
be treated as a termination of such collective bargaining agreement.
SEC. 5. AMENDMENTS TO THE INTERNAL REVENUE CODE OF 1986.
(a) In General- Subchapter B of chapter 100 of the Internal Revenue Code of
1986 is amended--
(1) in the table of sections, by inserting after the item relating to section
9813 the following:
`Sec. 9814. Required coverage for minimum hospital stay for mastectomies,
lumpectomies, and lymph node dissections for the treatment of breast cancer
and coverage for secondary consultations.';
(2) by inserting after section 9813 the following:
`SEC. 9814. REQUIRED COVERAGE FOR MINIMUM HOSPITAL STAY FOR MASTECTOMIES,
LUMPECTOMIES, AND LYMPH NODE DISSECTIONS FOR THE TREATMENT OF BREAST CANCER
AND COVERAGE FOR SECONDARY CONSULTATIONS.
`(1) IN GENERAL- A group health plan that provides medical and surgical
benefits shall ensure that inpatient (and in the case of a lumpectomy, outpatient)
coverage and radiation therapy is provided for breast cancer treatment.
Such plan may not--
`(A) insofar as the attending physician, in consultation with the patient,
determines it to be medically necessary--
`(i) restrict benefits for any hospital length of stay in connection
with a mastectomy or breast conserving surgery (such as a lumpectomy)
for the treatment of breast cancer to less than 48 hours; or
`(ii) restrict benefits for any hospital length of stay in connection
with a lymph node dissection for the treatment of breast cancer to less
than 24 hours; or
`(B) require that a provider obtain authorization from the plan for prescribing
any length of stay required under this paragraph.
`(2) EXCEPTION- Nothing in this section shall be construed as requiring
the provision of inpatient coverage if the attending physician, in consultation
with the patient, determines that either a shorter period of hospital stay,
or outpatient treatment, is medically appropriate.
`(b) Prohibition on Certain Modifications- In implementing the requirements
of this section, a group health plan may not modify the terms and conditions
of coverage based on the determination by a participant or beneficiary to
request less than the minimum coverage required under subsection (a).
`(c) Notice- A group health plan shall provide notice to each participant
and beneficiary under such plan regarding the coverage required by this section
in accordance with regulations promulgated by the Secretary. Such notice shall
be in writing and prominently positioned in the summary of the plan made available
or distributed by the plan and shall be transmitted--
`(1) in the next mailing made by the plan to the participant or beneficiary;
or
`(2) as part of any yearly informational packet sent to the participant
or beneficiary;
`(d) Secondary Consultations-
`(1) IN GENERAL- A group health plan that provides coverage with respect
to medical and surgical services provided in relation to the diagnosis and
treatment of cancer shall ensure that coverage is provided for secondary
consultations, on terms and conditions that are no more restrictive than
those applicable to the initial consultations, by specialists in the appropriate
medical fields (including pathology, radiology, and oncology) to confirm
or refute such diagnosis. Such plan or issuer shall ensure that coverage
is provided for such secondary consultation whether such consultation is
based on a positive or negative initial diagnosis. In any case in which
the attending physician certifies in writing that services necessary for
such a secondary consultation are not sufficiently available from specialists
operating under the plan with respect to whose services coverage is otherwise
provided under such plan or by such issuer, such plan or issuer shall ensure
that coverage is provided with respect to the services necessary for the
secondary consultation with any other specialist selected by the attending
physician for such purpose at no additional cost to the individual beyond
that which the individual would have paid if the specialist was participating
in the network of the plan.
`(2) EXCEPTION- Nothing in paragraph (1) shall be construed as requiring
the provision of secondary consultations where the patient determines not
to seek such a consultation.
`(e) Prohibition on Penalties- A group health plan may not--
`(1) penalize or otherwise reduce or limit the reimbursement of a provider
or specialist because the provider or specialist provided care to a participant
or beneficiary in accordance with this section;
`(2) provide financial or other incentives to a physician or specialist
to induce the physician or specialist to keep the length of inpatient stays
of patients following a mastectomy, lumpectomy, or a lymph node dissection
for the treatment of breast cancer below certain limits or to limit referrals
for secondary consultations; or
`(3) provide financial or other incentives to a physician or specialist
to induce the physician or specialist to refrain from referring a participant
or beneficiary for a secondary consultation that would otherwise be covered
by the plan involved under subsection (d).'.
(1) IN GENERAL- The amendments made by this section shall apply with respect
to plan years beginning on or after the date of enactment of this Act.
(2) SPECIAL RULE FOR COLLECTIVE BARGAINING AGREEMENTS- In the case of a
group health plan maintained pursuant to 1 or more collective bargaining
agreements between employee representatives and 1 or more employers ratified
before the date of enactment of this Act, the amendments made by this section
shall not apply to plan years beginning before the date on which the last
collective bargaining agreements relating to the plan terminates (determined
without regard to any extension thereof agreed to after the date of enactment
of this Act). For purposes of this paragraph, any plan amendment made pursuant
to a collective bargaining agreement relating to the plan which amends the
plan solely to conform to any requirement added by this section shall not
be treated as a termination of such collective bargaining agreement.
SEC. 6. OPPORTUNITY FOR INDEPENDENT, EXTERNAL THIRD PARTY REVIEWS OF CERTAIN
NONRENEWALS AND DISCONTINUATIONS, INCLUDING RESCISSIONS, OF INDIVIDUAL HEALTH
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) is amended--
(1) in its heading, by inserting `and 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 is amended
by adding at the end the following new section:
`SEC. 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.
END
