Ensuring Coverage for Patients with Pre-Existing Conditions Act
This bill establishes provisions under the Health Insurance Portability and Accountability Act of 1996 relating to the guaranteed availability of health insurance coverage as well as prohibitions against discriminatory practices based on preexisting conditions or health status; the bill also prohibits related exclusions or limitations of benefits and establishes certain enforcement mechanisms.
[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6898 Introduced in House (IH)]
<DOC>
115th CONGRESS
2d Session
H. R. 6898
To amend the Health Insurance Portability and Accountability Act to
ensure coverage for individuals with preexisting conditions, and for
other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
September 26, 2018
Mr. Knight (for himself, Mr. Huizenga, Mr. Curtis, Mr. Denham, Mrs.
Mimi Walters of California, Mrs. Wagner, Mr. Blum, Mr. Valadao, Ms.
Herrera Beutler, Mr. Poliquin, and Mr. Renacci) 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 amend the Health Insurance Portability and Accountability Act to
ensure coverage for individuals with preexisting conditions, and for
other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Maintaining Protections for Patients
with Preexisting Conditions Act of 2018''.
SEC. 2. GUARANTEED AVAILABILITY OF COVERAGE; PROHIBITING
DISCRIMINATION.
(a) In General.--Subtitle C of title I of the Health Insurance
Portability and Accountability Act of 1996 (Public Law 104-191) is
amended by adding at the end the following:
``SEC. 196. GUARANTEED AVAILABILITY OF COVERAGE.
``(a) Guaranteed Issuance of Coverage in the Individual and Group
Market.--Subject to subsections (b) through (d), each health insurance
issuer that offers health insurance coverage in the individual or group
market in a State must accept every employer and individual in the
State that applies for such coverage.
``(b) Enrollment.--
``(1) Restriction.--A health insurance issuer described in
subsection (a) may restrict enrollment in coverage described in
such subsection to open or special enrollment periods.
``(2) Establishment.--A health insurance issuer described
in subsection (a) shall, in accordance with the regulations
promulgated under paragraph (3), establish special enrollment
periods for qualifying events (under section 603 of the
Employee Retirement Income Security Act of 1974).
``(3) Regulations.--The Secretary shall promulgate
regulations with respect to enrollment periods under paragraphs
(1) and (2).
``(c) Special Rules for Network Plans.--
``(1) In general.--In the case of a health insurance issuer
that offers health insurance coverage in the group and
individual market through a network plan, the issuer may--
``(A) limit the employers that may apply for such
coverage to those with eligible individuals who live,
work, or reside in the service area for such network
plan; and
``(B) within the service area of such plan, deny
such coverage to such employers and individuals if the
issuer has demonstrated, if required, to the applicable
State authority that--
``(i) it will not have the capacity to
deliver services adequately to enrollees of any
additional groups or any additional individuals
because of its obligations to existing group
contract holders and enrollees; and
``(ii) it is applying this paragraph
uniformly to all employers and individuals
without regard to the claims experience of
those individuals, employers and their
employees (and their dependents), or any health
status-related factor relating to such
individuals, employees, and dependents.
``(2) 180-day suspension upon denial of coverage.--An
issuer, upon denying health insurance coverage in any service
area in accordance with paragraph (1)(B), may not offer
coverage in the group or individual market within such service
area for a period of 180 days after the date such coverage is
denied.
``(d) Application of Financial Capacity Limits.--
``(1) In general.--A health insurance issuer may deny
health insurance coverage in the group or individual market if
the issuer has demonstrated, if required, to the applicable
State authority that--
``(A) it does not have the financial reserves
necessary to underwrite additional coverage; and
``(B) it is applying this paragraph uniformly to
all employers and individuals in the group or
individual market in the State consistent with
applicable State law and without regard to the claims
experience of those individuals, employers and their
employees (and their dependents) or any health status-
related factor relating to such individuals, employees,
and dependents.
``(2) 180-day suspension upon denial of coverage.--A health
insurance issuer upon denying health insurance coverage in
connection with group health plans in accordance with paragraph
(1) in a State may not offer coverage in connection with group
health plans in the group or individual market in the State for
a period of 180 days after the date such coverage is denied or
until the issuer has demonstrated to the applicable State
authority, if required under applicable State law, that the
issuer has sufficient financial reserves to underwrite
additional coverage, whichever is later. An applicable State
authority may provide for the application of this subsection on
a service-area-specific basis.
``(e) Definitions.--In this section and in sections 197 through
199A:
``(1) The term `Secretary' means the Secretary of Health
and Human Services.
``(2) The terms `genetic information', `genetic test',
`group health plan', `group market', `health insurance
coverage', `health insurance issuer', `group health insurance
coverage', `individual health insurance coverage', `individual
market', and `underwriting purpose' have the meanings given
such terms in section 2791 of the Public Health Service Act.
``SEC. 197. FAIR HEALTH INSURANCE PREMIUMS.
``(a) Prohibiting Discriminatory Premium Rates.--
``(1) In general.--With respect to the premium rate charged
by a health insurance issuer for health insurance coverage
offered in the individual or small group market--
``(A) such rate shall vary with respect to the
particular plan or coverage involved only by--
``(i) whether such plan or coverage covers
an individual or family;
``(ii) rating area, as established in
accordance with paragraph (2);
``(iii) age, except that such rate shall
not vary by more than 3 to 1 for adults; and
``(iv) tobacco use, except that such rate
shall not vary by more than 1.5 to 1; and
``(B) such rate shall not vary with respect to the
particular plan or coverage involved by any other
factor not described in subparagraph (A).
``(2) Rating area.--
``(A) In general.--Each State shall establish 1 or
more rating areas within that State for purposes of
applying the requirements of this title.
``(B) Secretarial review.--The Secretary shall
review the rating areas established by each State under
subparagraph (A) to ensure the adequacy of such areas
for purposes of carrying out the requirements of this
title. If the Secretary determines a State's rating
areas are not adequate, or that a State does not
establish such areas, the Secretary may establish
rating areas for that State.
``(3) Permissible age bands.--The Secretary, in
consultation with the National Association of Insurance
Commissioners, shall define the permissible age bands for
rating purposes under paragraph (1)(A)(iii).
``(4) Application of variations based on age or tobacco
use.--With respect to family coverage under a group health plan
or health insurance coverage, the rating variations permitted
under clauses (iii) and (iv) of paragraph (1)(A) shall be
applied based on the portion of the premium that is
attributable to each family member covered under the plan or
coverage.
``SEC. 198. PROHIBITING DISCRIMINATION AGAINST INDIVIDUAL PARTICIPANTS
AND BENEFICIARIES BASED ON HEALTH STATUS.
``(a) In General.--A group health plan and a health insurance
issuer offering group or individual health insurance coverage may not
establish rules for eligibility (including continued eligibility) of
any individual to enroll under the terms of the plan or coverage based
on any of the following health status-related factors in relation to
the individual or a dependent of the individual:
``(1) Health status.
``(2) Medical condition (including both physical and mental
illnesses).
``(3) Claims experience.
``(4) Receipt of health care.
``(5) Medical history.
``(6) Genetic information.
``(7) Evidence of insurability (including conditions
arising out of acts of domestic violence).
``(8) Disability.
``(9) Any other health status-related factor determined
appropriate by the Secretary.
``(b) In Premium Contributions.--
``(1) In general.--A group health plan, and a health
insurance issuer offering group or individual health insurance
coverage, may not require any individual (as a condition of
enrollment or continued enrollment under the plan) to pay a
premium or contribution which is greater than such premium or
contribution for a similarly situated individual enrolled in
the plan on the basis of any health status-related factor in
relation to the individual or to an individual enrolled under
the plan as a dependent of the individual.
``(2) Construction.--Nothing in paragraph (1) shall be
construed--
``(A) to restrict the amount that an employer or
individual may be charged for coverage under a group
health plan except as provided in paragraph (3) or
individual health coverage, as the case may be; or
``(B) to prevent a group health plan, and a health
insurance issuer offering group health insurance
coverage, from establishing premium discounts or
rebates or modifying otherwise applicable copayments or
deductibles in return for adherence to programs of
health promotion and disease prevention.
``(3) No group-based discrimination on basis of genetic
information.--
``(A) In general.--For purposes of this section, a
group health plan, and health insurance issuer offering
group health insurance coverage in connection with a
group health plan, may not adjust premium or
contribution amounts for the group covered under such
plan on the basis of genetic information.
``(B) Rule of construction.--Nothing in
subparagraph (A) or in paragraphs (1) and (2) of
subsection (d) shall be construed to limit the ability
of a health insurance issuer offering group or
individual health insurance coverage to increase the
premium for an employer based on the manifestation of a
disease or disorder of an individual who is enrolled in
the plan. In such case, the manifestation of a disease
or disorder in one individual cannot also be used as
genetic information about other group members and to
further increase the premium for the employer.
``(c) Genetic Testing.--
``(1) Limitation on requesting or requiring genetic
testing.--A group health plan, and a health insurance issuer
offering health insurance coverage in connection with a group
health plan, shall not request or require an individual or a
family member of such individual to undergo a genetic test.
``(2) Rule of construction.--Paragraph (1) shall not be
construed to limit the authority of a health care professional
who is providing health care services to an individual to
request that such individual undergo a genetic test.
``(3) Rule of construction regarding payment.--
``(A) In general.--Nothing in paragraph (1) shall
be construed to preclude a group health plan, or a
health insurance issuer offering health insurance
coverage in connection with a group health plan, from
obtaining and using the results of a genetic test in
making a determination regarding payment (as such term
is defined for the purposes of applying the regulations
promulgated by the Secretary under part C of title XI
of the Social Security Act and section 264 of this Act,
as may be revised from time to time) consistent with
subsection (a).
``(B) Limitation.--For purposes of subparagraph
(A), a group health plan, or a health insurance issuer
offering health insurance coverage in connection with a
group health plan, may request only the minimum amount
of information necessary to accomplish the intended
purpose.
``(4) Research exception.--Notwithstanding paragraph (1), a
group health plan, or a health insurance issuer offering health
insurance coverage in connection with a group health plan, may
request, but not require, that a participant or beneficiary
undergo a genetic test if each of the following conditions is
met:
``(A) The request is made pursuant to research that
complies with part 46 of title 45, Code of Federal
Regulations, or equivalent Federal regulations, and any
applicable State or local law or regulations for the
protection of human subjects in research.
``(B) The plan or issuer clearly indicates to each
participant or beneficiary, or in the case of a minor
child, to the legal guardian of such beneficiary, to
whom the request is made that--
``(i) compliance with the request is
voluntary; and
``(ii) noncompliance will have no effect on
enrollment status or premium or contribution
amounts.
``(C) No genetic information collected or acquired
under this paragraph shall be used for underwriting
purposes.
``(D) The plan or issuer notifies the Secretary in
writing that the plan or issuer is conducting
activities pursuant to the exception provided for under
this paragraph, including a description of the
activities conducted.
``(E) The plan or issuer complies with such other
conditions as the Secretary may by regulation require
for activities conducted under this paragraph.
``(d) Prohibition on Collection of Genetic Information.--
``(1) In general.--A group health plan, and a health
insurance issuer offering health insurance coverage in
connection with a group health plan, shall not request,
require, or purchase genetic information for underwriting
purposes.
``(2) Prohibition on collection of genetic information
prior to enrollment.--A group health plan, and a health
insurance issuer offering health insurance coverage in
connection with a group health plan, shall not request,
require, or purchase genetic information with respect to any
individual prior to such individual's enrollment under the plan
or coverage in connection with such enrollment.
``(3) Incidental collection.--If a group health plan, or a
health insurance issuer offering health insurance coverage in
connection with a group health plan, obtains genetic
information incidental to the requesting, requiring, or
purchasing of other information concerning any individual, such
request, requirement, or purchase shall not be considered a
violation of paragraph (2) if such request, requirement, or
purchase is not in violation of paragraph (1).
``(e) Genetic Information of a Fetus or Embryo.--Any reference in
this part to genetic information concerning an individual or family
member of an individual shall--
``(1) with respect to such an individual or family member
of an individual who is a pregnant woman, include genetic
information of any fetus carried by such pregnant woman; and
``(2) with respect to an individual or family member
utilizing an assisted reproductive technology, include genetic
information of any embryo legally held by the individual or
family member.
``(f) Programs of Health Promotion or Disease Prevention.--
``(1) General provisions.--
``(A) General rule.--For purposes of subsection
(b)(2)(B), a program of health promotion or disease
prevention (referred to in this subsection as a
`wellness program') shall be a program offered by an
employer that is designed to promote health or prevent
disease that meets the applicable requirements of this
subsection.
``(B) No conditions based on health status
factor.--If none of the conditions for obtaining a
premium discount or rebate or other reward for
participation in a wellness program is based on an
individual satisfying a standard that is related to a
health status factor, such wellness program shall not
violate this section if participation in the program is
made available to all similarly situated individuals
and the requirements of paragraph (2) are complied
with.
``(C) Conditions based on health status factor.--If
any of the conditions for obtaining a premium discount
or rebate or other reward for participation in a
wellness program is based on an individual satisfying a
standard that is related to a health status factor,
such wellness program shall not violate this section if
the requirements of paragraph (3) are complied with.
``(2) Wellness programs not subject to requirements.--If
none of the conditions for obtaining a premium discount or
rebate or other reward under a wellness program as described in
paragraph (1)(B) are based on an individual satisfying a
standard that is related to a health status factor (or if such
a wellness program does not provide such a reward), the
wellness program shall not violate this section if
participation in the program is made available to all similarly
situated individuals. The following programs shall not have to
comply with the requirements of paragraph (3) if participation
in the program is made available to all similarly situated
individuals:
``(A) A program that reimburses all or part of the
cost for memberships in a fitness center.
``(B) A diagnostic testing program that provides a
reward for participation and does not base any part of
the reward on outcomes.
``(C) A program that encourages preventive care
related to a health condition through the waiver of the
copayment or deductible requirement under group health
plan for the costs of certain items or services related
to a health condition (such as prenatal care or well-
baby visits).
``(D) A program that reimburses individuals for the
costs of smoking cessation programs without regard to
whether the individual quits smoking.
``(E) A program that provides a reward to
individuals for attending a periodic health education
seminar.
``(3) Wellness programs subject to requirements.--If any of
the conditions for obtaining a premium discount, rebate, or
reward under a wellness program as described in paragraph
(1)(C) is based on an individual satisfying a standard that is
related to a health status factor, the wellness program shall
not violate this section if the following requirements are
complied with:
``(A) The reward for the wellness program, together
with the reward for other wellness programs with
respect to the plan that requires satisfaction of a
standard related to a health status factor, shall not
exceed 30 percent of the cost of employee-only coverage
under the plan. If, in addition to employees or
individuals, any class of dependents (such as spouses
or spouses and dependent children) may participate
fully in the wellness program, such reward shall not
exceed 30 percent of the cost of the coverage in which
an employee or individual and any dependents are
enrolled. For purposes of this paragraph, the cost of
coverage shall be determined based on the total amount
of employer and employee contributions for the benefit
package under which the employee is (or the employee
and any dependents are) receiving coverage. A reward
may be in the form of a discount or rebate of a premium
or contribution, a waiver of all or part of a cost-
sharing mechanism (such as deductibles, copayments, or
coinsurance), the absence of a surcharge, or the value
of a benefit that would otherwise not be provided under
the plan. The Secretaries of Labor, Health and Human
Services, and the Treasury may increase the reward
available under this subparagraph to up to 50 percent
of the cost of coverage if the Secretaries determine
that such an increase is appropriate.
``(B) The wellness program shall be reasonably
designed to promote health or prevent disease. A
program complies with the preceding sentence if the
program has a reasonable chance of improving the health
of, or preventing disease in, participating individuals
and it is not overly burdensome, is not a subterfuge
for discriminating based on a health status factor, and
is not highly suspect in the method chosen to promote
health or prevent disease.
``(C) The plan shall give individuals eligible for
the program the opportunity to qualify for the reward
under the program at least once each year.
``(D) The full reward under the wellness program
shall be made available to all similarly situated
individuals. For such purpose, among other things:
``(i) The reward is not available to all
similarly situated individuals for a period
unless the wellness program allows--
``(I) for a reasonable alternative
standard (or waiver of the otherwise
applicable standard) for obtaining the
reward for any individual for whom, for
that period, it is unreasonably
difficult due to a medical condition to
satisfy the otherwise applicable
standard; and
``(II) for a reasonable alternative
standard (or waiver of the otherwise
applicable standard) for obtaining the
reward for any individual for whom, for
that period, it is medically
inadvisable to attempt to satisfy the
otherwise applicable standard.
``(ii) If reasonable under the
circumstances, the plan or issuer may seek
verification, such as a statement from an
individual's physician, that a health status
factor makes it unreasonably difficult or
medically inadvisable for the individual to
satisfy or attempt to satisfy the otherwise
applicable standard.
``(E) The plan or issuer involved shall disclose in
all plan materials describing the terms of the wellness
program the availability of a reasonable alternative
standard (or the possibility of waiver of the otherwise
applicable standard) required under subparagraph (D).
If plan materials disclose that such a program is
available, without describing its terms, the disclosure
under this subparagraph shall not be required.
``SEC. 199. PROHIBITION OF PREEXISTING CONDITION EXCLUSIONS OR OTHER
DISCRIMINATION BASED ON HEALTH STATUS.
``(a) In General.--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) Definitions.--For purposes of this section--
``(1) Preexisting condition exclusion.--
``(A) In general.--The term `preexisting condition
exclusion' means, with respect to coverage, a
limitation or exclusion of benefits relating to a
condition based on the fact that the condition was
present before the date of enrollment for such
coverage, whether or not any medical advice, diagnosis,
care, or treatment was recommended or received before
such date.
``(B) Treatment of genetic information.--Genetic
information shall not be treated as a condition
described in subsection (a)(1) in the absence of a
diagnosis of the condition related to such information.
``(2) Enrollment date.--The term `enrollment date' means,
with respect to an individual covered under a group health plan
or health insurance coverage, the date of enrollment of the
individual in the plan or coverage or, if earlier, the first
day of the waiting period for such enrollment.
``(3) Late enrollee.--The term `late enrollee' means, with
respect to coverage under a group health plan, a participant or
beneficiary who enrolls under the plan other than during--
``(A) the first period in which the individual is
eligible to enroll under the plan; or
``(B) a special enrollment period under subsection
(f).
``(4) Waiting period.--The term `waiting period' means,
with respect to a group health plan and an individual who is a
potential participant or beneficiary in the plan, the period
that must pass with respect to the individual before the
individual is eligible to be covered for benefits under the
terms of the plan.
``(c) Rules Relating to Crediting Previous Coverage.--
``(1) Creditable coverage defined.--For purposes of this
title, the term `creditable coverage' means, with respect to an
individual, coverage of the individual under any of the
following:
``(A) A group health plan.
``(B) Health insurance coverage.
``(C) Part A or part B of title XVIII of the Social
Security Act.
``(D) Title XIX of the Social Security Act, other
than coverage consisting solely of benefits under
section 1928.
``(E) Chapter 55 of title 10, United States Code.
``(F) A medical care program of the Indian Health
Service or of a tribal organization.
``(G) A State health benefits risk pool.
``(H) A health plan offered under chapter 89 of
title 5, United States Code.
``(I) A public health plan (as defined in
regulations).
``(J) A health benefit plan under section 5(e) of
the Peace Corps Act (22 U.S.C. 2504(e)).
Such term does not include coverage consisting solely of
coverage of excepted benefits (as defined in section 2791(c)).
``(2) Not counting periods before significant breaks in
coverage.--
``(A) In general.--A period of creditable coverage
shall not be counted, with respect to enrollment of an
individual under a group or individual health plan, if,
after such period and before the enrollment date, there
was a 63-day period during all of which the individual
was not covered under any creditable coverage.
``(B) Waiting period not treated as a break in
coverage.--For purposes of subparagraph (A) and
subsection (d)(4), any period that an individual is in
a waiting period for any coverage under a group or
individual health plan (or for group health insurance
coverage) or is in an affiliation period (as defined in
subsection (g)(2)) shall not be taken into account in
determining the continuous period under subparagraph
(A).
``(C) TAA-eligible individuals.--In the case of
plan years beginning before January 1, 2014--
``(i) TAA pre-certification period rule.--
In the case of a TAA-eligible individual, the
period beginning on the date the individual has
a TAA-related loss of coverage and ending on
the date that is 7 days after the date of the
issuance by the Secretary (or by any person or
entity designated by the Secretary) of a
qualified health insurance costs credit
eligibility certificate for such individual for
purposes of section 7527 of the Internal
Revenue Code of 1986 shall not be taken into
account in determining the continuous period
under subparagraph (A).
``(ii) Definitions.--The terms `TAA-
eligible individual' and `TAA-related loss of
coverage' have the meanings given such terms in
section 2205(b)(4).
``(3) Method of crediting coverage.--
``(A) Standard method.--Except as otherwise
provided under subparagraph (B), for purposes of
applying subsection (a)(3), a group health plan, and a
health insurance issuer offering group or individual
health insurance coverage, shall count a period of
creditable coverage without regard to the specific
benefits covered during the period.
``(B) Election of alternative method.--A group
health plan, or a health insurance issuer offering
group or individual health insurance, may elect to
apply subsection (a)(3) based on coverage of benefits
within each of several classes or categories of
benefits specified in regulations rather than as
provided under subparagraph (A). Such election shall be
made on a uniform basis for all participants and
beneficiaries. Under such election a group or
individual health plan or issuer shall count a period
of creditable coverage with respect to any class or
category of benefits if any level of benefits is
covered within such class or category.
``(C) Plan notice.--In the case of an election with
respect to a group health plan under subparagraph (B)
(whether or not health insurance coverage is provided
in connection with such plan), the plan shall--
``(i) prominently state in any disclosure
statements concerning the plan, and state to
each enrollee at the time of enrollment under
the plan, that the plan has made such election;
and
``(ii) include in such statements a
description of the effect of this election.
``(D) Issuer notice.--In the case of an election
under subparagraph (B) with respect to health insurance
coverage offered by an issuer in the individual or
group market, the issuer--
``(i) shall prominently state in any
disclosure statements concerning the coverage,
and to each employer at the time of the offer
or sale of the coverage, that the issuer has
made such election; and
``(ii) shall include in such statements a
description of the effect of such election.
``(4) Establishment of period.--Periods of creditable
coverage with respect to an individual shall be established
through presentation of certifications described in subsection
(e) or in such other manner as may be specified in regulations.
``(d) Exceptions.--
``(1) Exclusion not applicable to certain newborns.--
Subject to paragraph (4), a group health plan, and a health
insurance issuer offering group or individual health insurance
coverage, may not impose any preexisting condition exclusion in
the case of an individual who, as of the last day of the 30-day
period beginning with the date of birth, is covered under
creditable coverage.
``(2) Exclusion not applicable to certain adopted
children.--Subject to paragraph (4), a group health plan, and a
health insurance issuer offering group or individual health
insurance coverage, may not impose any preexisting condition
exclusion in the case of a child who is adopted or placed for
adoption before attaining 18 years of age and who, as of the
last day of the 30-day period beginning on the date of the
adoption or placement for adoption, is covered under creditable
coverage. The previous sentence shall not apply to coverage
before the date of such adoption or placement for adoption.
``(3) Exclusion not applicable to pregnancy.--A group
health plan, and health insurance issuer offering group or
individual health insurance coverage, may not impose any
preexisting condition exclusion relating to pregnancy as a
preexisting condition.
``(4) Loss if break in coverage.--Paragraphs (1) and (2)
shall no longer apply to an individual after the end of the
first 63-day period during all of which the individual was not
covered under any creditable coverage.
``(e) Certifications and Disclosure of Coverage.--
``(1) Requirement for certification of period of creditable
coverage.--
``(A) In general.--A group health plan, and a
health insurance issuer offering group or individual
health insurance coverage, shall provide the
certification described in subparagraph (B)--
``(i) at the time an individual ceases to
be covered under the plan or otherwise becomes
covered under a COBRA continuation provision;
``(ii) in the case of an individual
becoming covered under such a provision, at the
time the individual ceases to be covered under
such provision; and
``(iii) on the request on behalf of an
individual made not later than 24 months after
the date of cessation of the coverage described
in clause (i) or (ii), whichever is later.
The certification under clause (i) may be provided, to
the extent practicable, at a time consistent with
notices required under any applicable COBRA
continuation provision.
``(B) Certification.--The certification described
in this subparagraph is a written certification of--
``(i) the period of creditable coverage of
the individual under such plan and the coverage
(if any) under such COBRA continuation
provision; and
``(ii) the waiting period (if any) (and
affiliation period, if applicable) imposed with
respect to the individual for any coverage
under such plan.
``(C) Issuer compliance.--To the extent that
medical care under a group health plan consists of
group health insurance coverage, the plan is deemed to
have satisfied the certification requirement under this
paragraph if the health insurance issuer offering the
coverage provides for such certification in accordance
with this paragraph.
``(2) Disclosure of information on previous benefits.--In
the case of an election described in subsection (c)(3)(B) by a
group health plan or health insurance issuer, if the plan or
issuer enrolls an individual for coverage under the plan and
the individual provides a certification of coverage of the
individual under paragraph (1)--
``(A) upon request of such plan or issuer, the
entity which issued the certification provided by the
individual shall promptly disclose to such requesting
plan or issuer information on coverage of classes and
categories of health benefits available under such
entity's plan or coverage; and
``(B) such entity may charge the requesting plan or
issuer for the reasonable cost of disclosing such
information.
``(3) Regulations.--The Secretary shall establish rules to
prevent an entity's failure to provide information under
paragraph (1) or (2) with respect to previous coverage of an
individual from adversely affecting any subsequent coverage of
the individual under another group health plan or health
insurance coverage.
``(f) Special Enrollment Periods.--
``(1) Individuals losing other coverage.--A group health
plan, and a health insurance issuer offering group health
insurance coverage in connection with a group health plan,
shall permit an employee who is eligible, but not enrolled, for
coverage under the terms of the plan (or a dependent of such an
employee if the dependent is eligible, but not enrolled, for
coverage under such terms) to enroll for coverage under the
terms of the plan if each of the following conditions is met:
``(A) The employee or dependent was covered under a
group health plan or had health insurance coverage at
the time coverage was previously offered to the
employee or dependent.
``(B) The employee stated in writing at such time
that coverage under a group health plan or health
insurance coverage was the reason for declining
enrollment, but only if the plan sponsor or issuer (if
applicable) required such a statement at such time and
provided the employee with notice of such requirement
(and the consequences of such requirement) at such
time.
``(C) The employee's or dependent's coverage
described in subparagraph (A)--
``(i) was under a COBRA continuation
provision and the coverage under such provision
was exhausted; or
``(ii) was not under such a provision and
either the coverage was terminated as a result
of loss of eligibility for the coverage
(including as a result of legal separation,
divorce, death, termination of employment, or
reduction in the number of hours of employment)
or employer contributions toward such coverage
were terminated.
``(D) Under the terms of the plan, the employee
requests such enrollment not later than 30 days after
the date of exhaustion of coverage described in
subparagraph (C)(i) or termination of coverage or
employer contribution described in subparagraph
(C)(ii).
``(2) For dependent beneficiaries.--
``(A) In general.--If--
``(i) a group health plan makes coverage
available with respect to a dependent of an
individual;
``(ii) the individual is a participant
under the plan (or has met any waiting period
applicable to becoming a participant under the
plan and is eligible to be enrolled under the
plan but for a failure to enroll during a
previous enrollment period); and
``(iii) a person becomes such a dependent
of the individual through marriage, birth, or
adoption or placement for adoption,
the group health plan shall provide for a dependent
special enrollment period described in subparagraph (B)
during which the person (or, if not otherwise enrolled,
the individual) may be enrolled under the plan as a
dependent of the individual, and in the case of the
birth or adoption of a child, the spouse of the
individual may be enrolled as a dependent of the
individual if such spouse is otherwise eligible for
coverage.
``(B) Dependent special enrollment period.--A
dependent special enrollment period under this
subparagraph shall be a period of not less than 30 days
and shall begin on the later of--
``(i) the date dependent coverage is made
available; or
``(ii) the date of the marriage, birth, or
adoption or placement for adoption (as the case
may be) described in subparagraph (A)(iii).
``(C) No waiting period.--If an individual seeks to
enroll a dependent during the first 30 days of such a
dependent special enrollment period, the coverage of
the dependent shall become effective--
``(i) in the case of marriage, not later
than the first day of the first month beginning
after the date the completed request for
enrollment is received;
``(ii) in the case of a dependent's birth,
as of the date of such birth; or
``(iii) in the case of a dependent's
adoption or placement for adoption, the date of
such adoption or placement for adoption.
``(3) Special rules for application in case of medicaid and
chip.--
``(A) In general.--A group health plan, and a
health insurance issuer offering group health insurance
coverage in connection with a group health plan, shall
permit an employee who is eligible, but not enrolled,
for coverage under the terms of the plan (or a
dependent of such an employee if the dependent is
eligible, but not enrolled, for coverage under such
terms) to enroll for coverage under the terms of the
plan if either of the following conditions is met:
``(i) Termination of medicaid or chip
coverage.--The employee or dependent is covered
under a Medicaid plan under title XIX of the
Social Security Act or under a State child
health plan under title XXI of such Act and
coverage of the employee or dependent under
such a plan is terminated as a result of loss
of eligibility for such coverage and the
employee requests coverage under the group
health plan (or health insurance coverage) not
later than 60 days after the date of
termination of such coverage.
``(ii) Eligibility for employment
assistance under medicaid or chip.--The
employee or dependent becomes eligible for
assistance, with respect to coverage under the
group health plan or health insurance coverage,
under such Medicaid plan or State child health
plan (including under any waiver or
demonstration project conducted under or in
relation to such a plan), if the employee
requests coverage under the group health plan
or health insurance coverage not later than 60
days after the date the employee or dependent
is determined to be eligible for such
assistance.
``(B) Coordination with medicaid and chip.--
``(i) Outreach to employees regarding
availability of medicaid and chip coverage.--
``(I) In general.--Each employer
that maintains a group health plan in a
State that provides medical assistance
under a State Medicaid plan under title
XIX of the Social Security Act, or
child health assistance under a State
child health plan under title XXI of
such Act, in the form of premium
assistance for the purchase of coverage
under a group health plan, shall
provide to each employee a written
notice informing the employee of
potential opportunities then currently
available in the State in which the
employee resides for premium assistance
under such plans for health coverage of
the employee or the employee's
dependents. For purposes of compliance
with this subclause, the employer may
use any State-specific model notice
developed in accordance with section
701(f)(3)(B)(i)(II) of the Employee
Retirement Income Security Act of 1974
(29 U.S.C. 1181(f)(3)(B)(i)(II)).
``(II) Option to provide concurrent
with provision of plan materials to
employee.--An employer may provide the
model notice applicable to the State in
which an employee resides concurrent
with the furnishing of materials
notifying the employee of health plan
eligibility, concurrent with materials
provided to the employee in connection
with an open season or election process
conducted under the plan, or concurrent
with the furnishing of the summary plan
description as provided in section
104(b) of the Employee Retirement
Income Security Act of 1974.
``(ii) Disclosure about group health plan
benefits to states for medicaid and chip
eligible individuals.--In the case of an
enrollee in a group health plan who is covered
under a Medicaid plan of a State under title
XIX of the Social Security Act or under a State
child health plan under title XXI of such Act,
the plan administrator of the group health plan
shall disclose to the State, upon request,
information about the benefits available under
the group health plan in sufficient
specificity, as determined under regulations of
the Secretary of Health and Human Services in
consultation with the Secretary that require
use of the model coverage coordination
disclosure form developed under section
311(b)(1)(C) of the Children's Health Insurance
Reauthorization Act of 2009, so as to permit
the State to make a determination (under
paragraph (2)(B), (3), or (10) of section
2105(c) of the Social Security Act or
otherwise) concerning the cost-effectiveness of
the State providing medical or child health
assistance through premium assistance for the
purchase of coverage under such group health
plan and in order for the State to provide
supplemental benefits required under paragraph
(10)(E) of such section or other authority.
``(g) Use of Affiliation Period by HMOs as Alternative to
Preexisting Condition Exclusion.--
``(1) In general.--A health maintenance organization which
offers health insurance coverage in connection with a group
health plan and which does not impose any preexisting condition
exclusion allowed under subsection (a) with respect to any
particular coverage option may impose an affiliation period for
such coverage option, but only if--
``(A) such period is applied uniformly without
regard to any health status-related factors; and
``(B) such period does not exceed 2 months (or 3
months in the case of a late enrollee).
``(2) Affiliation period.--
``(A) Defined.--For purposes of this title, the
term `affiliation period' means a period which, under
the terms of the health insurance coverage offered by
the health maintenance organization, must expire before
the health insurance coverage becomes effective. The
organization is not required to provide health care
services or benefits during such period and no premium
shall be charged to the participant or beneficiary for
any coverage during the period.
``(B) Beginning.--Such period shall begin on the
enrollment date.
``(C) Runs concurrently with waiting periods.--An
affiliation period under a plan shall run concurrently
with any waiting period under the plan.
``(3) Alternative methods.--A health maintenance
organization described in paragraph (1) may use alternative
methods, from those described in such paragraph, to address
adverse selection as approved by the State insurance
commissioner or official or officials designated by the State
to enforce the requirements of this part for the State involved
with respect to such issuer.
``SEC. 199A. ENFORCEMENT OF CERTAIN HEALTH INSURANCE REQUIREMENTS.
``(a) State Enforcement.--
``(1) State authority.--Each State may require that health
insurance issuers that issue, sell, renew, or offer health
insurance coverage in the State in the individual or group
market meet the requirements of this part with respect to such
issuers.
``(2) Failure to implement provisions.--In the case of a
determination by the Secretary that a State has failed to
substantially enforce a provision (or provisions) of sections
196 through 199 with respect to health insurance issuers in the
State, the Secretary shall enforce such provision (or
provisions) under subsection (b) insofar as they relate to the
issuance, sale, renewal, and offering of health insurance
coverage in connection with group health plans or individual
health insurance coverage in such State.
``(b) Secretarial Enforcement Authority.--
``(1) Limitation.--The provisions of this subsection shall
apply to enforcement of a provision (or provisions) described
in subsection (a)(2) only--
``(A) as provided under such subsection; and
``(B) with respect to individual health insurance
coverage or group health plans that are non-Federal
governmental plans.
``(2) Imposition of penalties.--In the cases described in
paragraph (1)--
``(A) In general.--Subject to the succeeding
provisions of this subsection, any non-Federal
governmental plan that is a group health plan and any
health insurance issuer that fails to meet a provision
of this part applicable to such plan or issuer is
subject to a civil money penalty under this subsection.
``(B) Liability for penalty.--In the case of a
failure by--
``(i) a health insurance issuer, the issuer
is liable for such penalty; or
``(ii) a group health plan that is a non-
Federal governmental plan which is--
``(I) sponsored by 2 or more
employers, the plan is liable for such
penalty; or
``(II) not so sponsored, the
employer is liable for such penalty.
``(C) Amount of penalty.--
``(i) In general.--The maximum amount of
penalty imposed under this paragraph is $100
for each day for each individual with respect
to which such a failure occurs.
``(ii) Considerations in imposition.--In
determining the amount of any penalty to be
assessed under this paragraph, the Secretary
shall take into account the previous record of
compliance of the entity being assessed with
the applicable provisions of this part and the
gravity of the violation.
``(iii) Limitations.--
``(I) Penalty not to apply where
failure not discovered exercising
reasonable diligence.--No civil money
penalty shall be imposed under this
paragraph on any failure during any
period for which it is established to
the satisfaction of the Secretary that
none of the entities against whom the
penalty would be imposed knew, or
exercising reasonable diligence would
have known, that such failure existed.
``(II) Penalty not to apply to
failures corrected within 30 days.--No
civil money penalty shall be imposed
under this paragraph on any failure if
such failure was due to reasonable
cause and not to willful neglect, and
such failure is corrected during the
30-day period beginning on the first
day any of the entities against whom
the penalty would be imposed knew, or
exercising reasonable diligence would
have known, that such failure existed.
``(D) Administrative review.--
``(i) Opportunity for hearing.--The entity
assessed shall be afforded an opportunity for
hearing by the Secretary upon request made
within 30 days after the date of the issuance
of a notice of assessment. In such hearing the
decision shall be made on the record pursuant
to section 554 of title 5, United States Code.
If no hearing is requested, the assessment
shall constitute a final and unappealable
order.
``(ii) Hearing procedure.--If a hearing is
requested, the initial agency decision shall be
made by an administrative law judge, and such
decision shall become the final order unless
the Secretary modifies or vacates the decision.
Notice of intent to modify or vacate the
decision of the administrative law judge shall
be issued to the parties within 30 days after
the date of the decision of the judge. A final
order which takes effect under this paragraph
shall be subject to review only as provided
under subparagraph (E).
``(E) Judicial review.--
``(i) Filing of action for review.--Any
entity against whom an order imposing a civil
money penalty has been entered after an agency
hearing under this paragraph may obtain review
by the United States district court for any
district in which such entity is located or the
United States District Court for the District
of Columbia by filing a notice of appeal in
such court within 30 days from the date of such
order, and simultaneously sending a copy of
such notice by registered mail to the
Secretary.
``(ii) Certification of administrative
record.--The Secretary shall promptly certify
and file in such court the record upon which
the penalty was imposed.
``(iii) Standard for review.--The findings
of the Secretary shall be set aside only if
found to be unsupported by substantial evidence
as provided by section 706(2)(E) of title 5,
United States Code.
``(iv) Appeal.--Any final decision, order,
or judgment of the district court concerning
such review shall be subject to appeal as
provided in chapter 83 of title 28 of such
Code.
``(F) Failure to pay assessment; maintenance of
action.--
``(i) Failure to pay assessment.--If any
entity fails to pay an assessment after it has
become a final and unappealable order, or after
the court has entered final judgment in favor
of the Secretary, the Secretary shall refer the
matter to the Attorney General who shall
recover the amount assessed by action in the
appropriate United States district court.
``(ii) Nonreviewability.--In such action
the validity and appropriateness of the final
order imposing the penalty shall not be subject
to review.
``(G) Payment of penalties.--Except as otherwise
provided, penalties collected under this paragraph
shall be paid to the Secretary (or other officer)
imposing the penalty and shall be available without
appropriation and until expended for the purpose of
enforcing the provisions with respect to which the
penalty was imposed.
``(3) Enforcement authority relating to genetic
discrimination.--
``(A) General rule.--In the cases described in
paragraph (1), notwithstanding the provisions of
paragraph (2)(C), the succeeding subparagraphs of this
paragraph shall apply with respect to an action under
this subsection by the Secretary with respect to any
failure of a health insurance issuer in connection with
a group health plan, to meet the requirements of
subsection (a)(1)(F), (b)(3), (c), or (d) of section
196 or section 197 or 196(b)(1) with respect to genetic
information in connection with the plan.
``(B) Amount.--
``(i) In general.--The amount of the
penalty imposed under this paragraph shall be
$100 for each day in the noncompliance period
with respect to each participant or beneficiary
to whom such failure relates.
``(ii) Noncompliance period.--For purposes
of this paragraph, the term `noncompliance
period' means, with respect to any failure, the
period--
``(I) beginning on the date such
failure first occurs; and
``(II) ending on the date the
failure is corrected.
``(C) Minimum penalties where failure discovered.--
Notwithstanding clauses (i) and (ii) of subparagraph
(D):
``(i) In general.--In the case of 1 or more
failures with respect to an individual--
``(I) which are not corrected
before the date on which the plan
receives a notice from the Secretary of
such violation; and
``(II) which occurred or continued
during the period involved;
the amount of penalty imposed by subparagraph
(A) by reason of such failures with respect to
such individual shall not be less than $2,500.
``(ii) Higher minimum penalty where
violations are more than de minimis.--To the
extent violations for which any person is
liable under this paragraph for any year are
more than de minimis, clause (i) shall be
applied by substituting `$15,000' for `$2,500'
with respect to such person.
``(D) Limitations.--
``(i) Penalty not to apply where failure
not discovered exercising reasonable
diligence.--No penalty shall be imposed by
subparagraph (A) on any failure during any
period for which it is established to the
satisfaction of the Secretary that the person
otherwise liable for such penalty did not know,
and exercising reasonable diligence would not
have known, that such failure existed.
``(ii) Penalty not to apply to failures
corrected within certain periods.--No penalty
shall be imposed by subparagraph (A) on any
failure if--
``(I) such failure was due to
reasonable cause and not to willful
neglect; and
``(II) such failure is corrected
during the 30-day period beginning on
the first date the person otherwise
liable for such penalty knew, or
exercising reasonable diligence would
have known, that such failure existed.
``(iii) Overall limitation for
unintentional failures.--In the case of
failures which are due to reasonable cause and
not to willful neglect, the penalty imposed by
subparagraph (A) for failures shall not exceed
the amount equal to the lesser of--
``(I) 10 percent of the aggregate
amount paid or incurred by the employer
(or predecessor employer) during the
preceding taxable year for group health
plans; or
``(II) $500,000.
``(E) Waiver by secretary.--In the case of a
failure which is due to reasonable cause and not to
willful neglect, the Secretary may waive part or all of
the penalty imposed by subparagraph (A) to the extent
that the payment of such penalty would be excessive
relative to the failure involved.
``(c) Definitions.--For purposes of this section:
``(1) Governmental plan.--The term `governmental plan' has
the meaning given such term under section 3(32) of the Employee
Retirement Income Security Act of 1974 and any Federal
governmental plan.
``(2) Federal governmental plan.--The term ``Federal
governmental plan'' means a governmental plan established or
maintained for its employees by the Government of the United
States or by any agency or instrumentality of such Government.
``(3) Non-federal governmental plan.--The term `non-Federal
governmental plan' means a governmental plan that is not a
Federal governmental plan.''.
(b) Conforming Amendment.--The table of contents under section 1(b)
of the Health Insurance Portability and Accountability Act of 1996
(Public Law 104-191) is amended by inserting after the item relating to
section 195 the following:
``Sec. 196. Guaranteed availability of coverage.
``Sec. 197. Fair health insurance premiums.
``Sec. 198. Prohibiting discrimination against individual participants
and beneficiaries based on health status.
``Sec. 199. Prohibition of preexisting condition exclusions or other
discrimination based on health status.
``Sec. 199A. Enforcement of certain health insurance requirements.''.
(c) ERISA and IRC Enforcement.--
(1) ERISA.--Subpart B of part 7 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 new section:
``SEC. 716. OTHER MARKET REFORMS.
``Sections 196 and 197 of the Health Insurance Portability and
Accountability Act of 1996 shall apply to health insurance issuers
providing health insurance coverage in connection with group health
plans, and sections 198 through 199 of such Act shall apply to group
health plans and health insurance issuers providing health insurance
coverage in connection with group health plans, as if included in this
subpart, and to the extent that any provision of this part conflicts
with a provision of such sections 196 or 197 with respect to health
insurance issuers providing health insurance coverage in connection
with group health plans or of such sections 198 or 199 with respect to
group health plans or health insurance issuers providing health
insurance coverage in connection with group health plans, the
provisions of such sections 196 through 199 shall apply.''.
(2) IRC.--Subchapter B of chapter 100 of subtitle K of
title 26 of the Internal Revenue Code of 1986 is amended by
adding at the end the following new section:
``SEC. 9816. OTHER MARKET REFORMS.
``Sections 196 and 197 of the Health Insurance Portability and
Accountability Act of 1996 shall apply to health insurance issuers
providing health insurance coverage in connection with group health
plans, and sections 198 through 199 of such Act shall apply to group
health plans and health insurance issuers providing health insurance
coverage in connection with group health plans, as if included in this
subchapter, and to the extent that any provision of this chapter
conflicts with a provision of such sections 196 or 197 with respect to
health insurance issuers providing health insurance coverage in
connection with group health plans or of such sections 198 or 199 with
respect to group health plans or health insurance issuers providing
health insurance coverage in connection with group health plans, the
provisions of such sections 196 through 199 shall apply.''.
<all>
Introduced in House
Introduced in House
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.
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.
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.
Referred to the Subcommittee on Health.
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