[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4419 Introduced in House (IH)]







105th CONGRESS
  2d Session
                                H. R. 4419

  To amend the Public Health Service Act and the Employee Retirement 
   Income Security Act of 1974 to permit physicians to prescribe non-
               formulary drugs when medically indicated.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             August 6, 1998

  Mr. Klink introduced the following bill; which was referred to the 
 Committee on Commerce, and in addition to the Committee on 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 Public Health Service Act and the Employee Retirement 
   Income Security Act of 1974 to permit physicians to prescribe non-
               formulary drugs when medically indicated.

    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 ``Prescription Guarantee Act of 
1998''.

SEC. 2. ACCESS TO NEEDED PRESCRIPTION DRUGS.

    (a) Group Health Plans.--
            (1) Amendments to the public health service act.--
                    (A) In general.--Subpart 2 of part A of title XXVII 
                of the Public Health Service Act is amended by adding 
                at the end the following new section:

``SEC. 2706. ACCESS TO NEEDED PRESCRIPTION DRUGS.

    ``(a) Requirement.--If a group health plan, or health insurance 
issuer that offers health insurance coverage in connection with a group 
health plan, provides benefits with respect to prescription drugs but 
the plan or coverage limits such benefits to (or provides more 
favorable benefits with respect to) drugs included in a formulary, the 
plan or issuer shall--
            ``(1) upon request, make available to the public in printed 
        form a description of the nature of any formulary restrictions; 
        and
            ``(2) provide for exceptions from the formulary 
        restrictions limitation when the plan or beneficiary's 
        physician, subject to reasonable review by the plan or issuer, 
        determines that a non-formulary alternative is medically 
        beneficial based on a therapeutic difference to the patient 
        involved.
    ``(b) Increase Copayments Permitted for Non-Formulary Drugs.--If a 
participating physician prescribes a non-formulary alternative 
prescription drug, a group health plan, or health insurance issuer may 
increase the copayment rate for such alternative to twice the rate 
applicable to comparable prescription drugs included in the formulary.
    ``(c) Coverage of Approved Drugs.--A group health plan (or health 
insurance coverage offered in connection with such a plan) that 
provides any coverage of prescription drugs shall not deny coverage of 
such a drug if the use is included in the labeling authorized by the 
application in effect for the drug pursuant to subsection (b) or (j) of 
section 505 of the Federal Food, Drug, and Cosmetic Act; or under 
subsection (f) of such section, or an application approved under 
section 515 of such Act.
    ``(d) Nondiscrimination.--A group health plan, or health insurance 
issuer that offers health insurance coverage, shall not discriminate in 
participation, reimbursement, or indemnification against a health 
professional, who is acting within the scope of the health 
professional's license or certification under applicable State law, 
solely based on the extent, type, or pattern of prescription drugs.
    ``(e) Any Willing Pharmacist.--A group health plan, or health 
insurance issuer that offers health insurance coverage, shall not 
exclude a pharmacist from its network of providers if such pharmacist 
is willing to enter into a contract with the plan or issuer to provide 
drugs at the rate prescribed by the plan or issuer.
    ``(f) Notice.--A group health plan under this part shall comply 
with the notice requirement under section 713(f) 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) Conforming amendment.--Section 2723(c) of such 
                Act (42 U.S.C. 300gg-23(c)) is amended by striking 
                ``section 2704'' and inserting ``sections 2704 and 
                2706''.
            (2) 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 is amended by adding at the end the 
                following new section:

``SEC. 713. ACCESS TO NEEDED PRESCRIPTION DRUGS.

    ``(a) Requirement.--If a group health plan, or health insurance 
issuer that offers health insurance coverage in connection with a group 
health plan, provides benefits with respect to prescription drugs but 
the plan or coverage limits such benefits to (or provides more 
favorable benefits with respect to) drugs included in a formulary, the 
plan or issuer shall--
            ``(1) upon request, make available to the public in printed 
        form a description of the nature of any formulary restrictions; 
        and
            ``(2) provide for exceptions from the formulary 
        restrictions limitation when the plan or beneficiary's 
        physician, subject to reasonable review by the plan or issuer, 
        determines that a non-formulary alternative is medically 
        beneficial based on a therapeutic difference to the patient 
        involved.
    ``(b) Increase Copayments Permitted for Non-Formulary Drugs.--If a 
participating physician prescribes a non-formulary alternative 
prescription drug, a group health plan, or health insurance issuer may 
increase the co-payment rate for such alternative to twice the rate 
applicable to comparable prescription drugs included in the formulary.
    ``(c) Coverage of Approved Drugs.--A group health plan (or health 
insurance coverage offered in connection with such a plan) that 
provides any coverage of prescription drugs shall not deny coverage of 
such a drug if the use is included in the labeling authorized by the 
application in effect for the drug pursuant to subsection (b) or (j) of 
section 505 of the Federal Food, Drug, and Cosmetic Act; or under 
subsection (f) of such section, or an application approved under 
section 515 of such Act.
    ``(d) Nondiscrimination.--A group health plan, or health insurance 
issuer that offers health insurance coverage, shall not discriminate in 
participation, reimbursement, or indemnification against a health 
professional, who is acting within the scope of the health 
professional's license or certification under applicable State law, 
solely based on the extent, type, or pattern of prescription drugs.
    ``(e) Any Willing Pharmacist.--A group health plan, or health 
insurance issuer that offers health insurance coverage, shall not 
exclude a pharmacist from its network of providers if such pharmacist 
is willing to enter into a contract with the plan or issuer to provide 
drugs at the rate prescribed by the plan or issuer.
    ``(f) Notice Under Group Health Plan.--The imposition of the 
requirements of this section shall be treated as a material 
modification in the terms of the plan described in section 102(a)(1), 
for purposes of assuring notice of such requirements under the plan; 
except that the summary description required to be provided under the 
last sentence of section 104(b)(1) with respect to such modification 
shall be provided by not later than 60 days after the first day of the 
first plan year in which such requirements apply.''.
                    (B) Conforming and clerical amendments.--(i) 
                Section 731(c) of such Act (29 U.S.C. 1191(c)) is 
                amended by striking ``section 711'' and inserting 
                ``sections 711 and 713''.
                    (ii) Section 732(a) of such Act (29 U.S.C. 
                1191a(a)) is amended by striking ``section 711'' and 
                inserting ``sections 711 and 713''.
                    (iii) The table of contents in section 1 of such 
                Act is amended by inserting after the item relating to 
                section 712 the following new item:

``Sec. 713. Access to needed prescription drugs.''.
    (b) Individual Health Insurance.--
            (1) In general.--Subpart 3 of part B of title XXVII of the 
        Public Health Service Act is amended by adding at the end the 
        following new section:

``SEC. 2752. ACCESS TO NEEDED PRESCRIPTION DRUGS.

    ``(a) In General.--The provisions of section 2706 shall apply to 
health insurance coverage offered by a health insurance issuer in the 
individual market in the same manner as they apply to health insurance 
coverage offered by a health insurance issuer in connection with a 
group health plan in the small or large group market.
    ``(b) Notice.--A health insurance issuer under this part shall 
comply with the notice requirement under section 713(f) of the Employee 
Retirement Income Security Act of 1974 with respect to the requirements 
referred to in subsection (a) as if such section applied to such issuer 
and such issuer were a group health plan.''.
            (2) Conforming amendment.--Section 2762(b)(2) of such Act 
        (42 U.S.C. 300gg-62(b)(2)) is amended by striking ``section 
        2751'' and inserting ``sections 2751 and 2752''.
    (d) Effective Dates.--
            (1) Group market reforms.--
                    (A) In general.--The amendments made by subsection 
                (a) shall apply with respect to plan years beginning on 
                or after January 1, 1999.
                    (B) 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 such date, the 
                amendments made by such subsections shall not apply to 
                plan years beginning before the later of--
                            (i) 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), or
                            (ii) January 1, 1999.
                For purposes of clause (i), 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 such clause shall not be 
                treated as a termination of such collective bargaining 
                agreement.
            (2) Individual market amendments.--The amendments made by 
        subsection (c) shall apply with respect to health insurance 
        coverage offered, sold, issued, renewed, in effect, or operated 
        in the individual market on or after January 1, 1999.
    (e) Coordinated Regulations.--Section 104(1) of 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 and C of title XXVII of the Public Health Service 
Act, and chapter 100 of the Internal Revenue Code of 1986''.
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