[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 1997 Introduced in Senate (IS)]







105th CONGRESS
  2d Session
                                S. 1997

 To protect the right of a member of a health maintenance organization 
   to receive continuing care at a facility selected by that member.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 28, 1998

 Ms. Mikulski (for herself and Mr. Faircloth) introduced the following 
 bill; which was read twice and referred to the Committee on Labor and 
                            Human Resources

_______________________________________________________________________

                                 A BILL


 
 To protect the right of a member of a health maintenance organization 
   to receive continuing care at a facility selected by that member.

    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 ``Seniors' Access to Continuing Care 
Act of 1998''.

SEC. 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 (as added by 
section 603(a) of the Newborns' and Mothers' Health Protection Act of 
1996 and amended by section 702(a) of the Mental Health Parity Act of 
1996) is amended by adding at the end the following new section:

``SEC. 713. ENSURING CHOICE FOR CONTINUING CARE.

    ``(a) In General.--With respect to health insurance coverage 
provided to participants or beneficiaries through a managed care 
organization under a group health plan, or through a health insurance 
issuer providing health insurance coverage in connection with a group 
health plan, such plan or issuer may not deny coverage for services 
provided to such participant or beneficiary by a continuing care 
retirement community, skilled nursing facility, or other qualified 
facility in which the participant or beneficiary resided prior to a 
hospitalization, regardless of whether such organization is under 
contract with such community or facility if the requirements described 
in subsection (b) are met.
    ``(b) Requirements.--The requirements of this subsection are that--
            ``(1) the service involved is a service for which the 
        managed care organization involved would be required to provide 
        or pay for under its contract with the participant or 
        beneficiary if the continuing care retirement community, 
        skilled nursing facility, or other qualified facility were 
        under contract with the organization;
            ``(2) the participant or beneficiary involved--
                    ``(A) resided in the continuing care retirement 
                community, skilled nursing facility, or other qualified 
                facility prior to being hospitalized;
                    ``(B) had a contractual or other right to return to 
                the facility after hospitalization; and
                    ``(C) elects to return to the facility after 
                hospitalization, whether or not the residence of the 
                participant or beneficiary after returning from the 
                hospital is the same part of the facility in which the 
                beneficiary resided prior to hospitalization;
            ``(3) the continuing care retirement community, skilled 
        nursing facility, or other qualified facility has the capacity 
        to provide the services the participant or beneficiary needs;
            ``(4) the continuing care retirement community, skilled 
        nursing facility, or other qualified facility is willing to 
        accept substantially similar payment under the same terms and 
        conditions that apply to similarly situated health care 
        facility providers under contract with the organization 
        involved.
    ``(c) Services To Prevent Hospitalization.--A group health plan or 
health insurance issuer to which this section applies may not deny 
payment for a skilled nursing service provided to a participant or 
beneficiary by a continuing care retirement community, skilled nursing 
facility, or other qualified facility in which the participant or 
beneficiary resides, without a preceding hospital stay, regardless of 
whether the organization is under contract with such community or 
facility, if--
            ``(1) the plan or issuer has determined that the service is 
        necessary to prevent the hospitalization of the participant or 
        beneficiary; and
            ``(2) the service to prevent hospitalization is provided as 
        an additional benefit as described in section 417.594 of title 
        42, Code of Federal Regulations.
    ``(d) Rights of Spouses.--A group health plan or health insurance 
issuer to which this section applies shall not deny payment for 
services provided by a skilled nursing facility for the care of a 
participant or beneficiary, regardless of whether the plan or issuer is 
under contract with such facility, if the spouse of the participant or 
beneficiary is already a resident of such facility and the requirements 
described in subsection (b) are met.
    ``(e) Exceptions.--Subsection (a) shall not apply--
            ``(1) where the attending acute care physician and the 
        participant or beneficiary (or a designated representative of 
        the participant or beneficiary where the participant or 
        beneficiary is physically or mentally incapable of making an 
        election under this paragraph) do not elect to pursue a course 
        of treatment necessitating continuing care; or
            ``(2) unless the community or facility involved--
                    ``(A) meets all applicable licensing and 
                certification requirements of the State in which it is 
                located; and
                    ``(B) agrees to reimbursement for the care of the 
                participant or beneficiary at a rate similar to the 
                rate negotiated by the managed care organization with 
                similar providers of care for similar services.
    ``(f) Prohibitions.--A group health plan and a health insurance 
issuer providing health insurance coverage in connection with a group 
health plan may not--
            ``(1) deny to an individual eligibility, or continued 
        eligibility, to enroll or to renew coverage with a managed care 
        organization under the plan, solely for the purpose of avoiding 
        the requirements of this section;
            ``(2) provide monetary payments or rebates to enrollees to 
        encourage such enrollees to accept less than the minimum 
        protections available under this section;
            ``(3) penalize or otherwise reduce or limit the 
        reimbursement of an attending physician because such physician 
        provided care to a participant or beneficiary in accordance 
        with this section; or
            ``(4) provide incentives (monetary or otherwise) to an 
        attending physician to induce such physician to provide care to 
        a participant or beneficiary in a manner inconsistent with this 
        section.
    ``(g) Rules of Construction.--
            ``(1) HMO not offering benefits.--This section shall not 
        apply with respect to any managed care organization under a 
        group health plan, or through a health insurance issuer 
        providing health insurance coverage in connection with a group 
        health plan, that does not provide benefits for stays in a 
        continuing care retirement community, skilled nursing facility, 
        or other qualified facility.
            ``(2) Cost-sharing.--Nothing in this section shall be 
        construed as preventing a managed care organization under a 
        group health plan, or through a health insurance issuer 
        providing health insurance coverage in connection with a group 
        health plan, from imposing deductibles, coinsurance, or other 
        cost-sharing in relation to benefits for care in a continuing 
        care facility.
    ``(h) Preemption; Exception for Health Insurance Coverage in 
Certain States.--
            ``(1) In general.--The requirements of this section shall 
        not apply with respect to health insurance coverage if there is 
        a State law (as defined in section 2723(d)(1)) for a State that 
        regulates such coverage that is described in any of the 
        following subparagraphs:
                    ``(A) Such State law requires such coverage to 
                provide for referral to a continuing care retirement 
                community, skilled nursing facility, or other qualified 
                facility consistent with this section.
                    ``(B) Such State law requires, in connection with 
                such coverage for continuing care, that the necessity 
                for such care is left to the decision of (or required 
                to be made by) the attending provider in consultation 
                with the enrollee.
                    ``(C) Such State law expands the range of services 
                or facilities covered under this section.
            ``(2) Construction.--Section 731(a)(1) shall not be 
        construed as superseding a State law described in paragraph 
        (1).
    ``(i) Penalties.--A participant or beneficiary may enforce the 
provisions of this section in an appropriate Federal district court. An 
action for injunctive relief or damages may be commenced on behalf of 
the participant or beneficiary by the participant's or beneficiary's 
legal representative. The court may award reasonable attorneys' fees to 
the prevailing party. If a beneficiary dies before conclusion of an 
action under this section, the action may be maintained by a 
representative of the participant's or beneficiary's estate.
    ``(j) Definitions.--In this section:
            ``(1) Attending acute care provider.--The term `attending 
        acute care provider' means anyone licensed or certified under 
        State law to provide health care services who is operating 
        within the scope of such license and who is primarily 
        responsible for the care of the enrollee.
            ``(2) Continuing care retirement community.--The term 
        `continuing care retirement community' means an organization 
        that provides or arranges for the provision of housing and 
        health-related services to an older person under an 
agreement effective for the life of the person or for a specified 
period greater than 1 year.
            ``(3) Managed care organization.--The term `managed care 
        organization' means an organization that provides comprehensive 
        health services to participants or beneficiaries, directly or 
        under contract or other agreement, on a prepayment basis to 
        such individuals. For purposes of this section, the following 
        shall be considered as managed care organizations:
                    ``(A) A Medicare+Choice plan authorized under 
                section 1851(a) of the Social Security Act.
                    ``(B) Any other entity that manages the cost, 
                utilization, and delivery of health care through the 
                use of predetermined periodic payments to health care 
                providers employed by or under contract or other 
                agreement, directly or indirectly, with the entity.
            ``(4) Other qualified facility.--The term `other qualified 
        facility' means any facility that can provide the services 
        required by the participant or beneficiary consistent with 
        State and Federal law.
            ``(5) Skilled nursing facility.--The term `skilled nursing 
        facility' means a facility that meets the requirements of 
        section 1819 of the Social Security Act (42 U.S.C. 1395i-3).''.
    (b) Clerical Amendment.--The table of contents in section 1 of such 
Act, as amended by section 603 of the Newborns' and Mothers' Health 
Protection Act of 1996 and section 702 of the Mental Health Parity Act 
of 1996, is amended by inserting after the item relating to section 712 
the following new item:

``Sec. 713. Ensuring choice for continuing care.''.
    (c) Effective Date.--The amendments made by this section shall 
apply with respect to plan years beginning on or after January 1, 1998.

SEC. 3. AMENDMENTS TO THE PUBLIC HEALTH SERVICE ACT RELATING TO THE 
              GROUP MARKET.

    (a) In General.--Subpart 2 of part A of title XXVII of the Public 
Health Service Act (as added by section 604(a) of the Newborns' and 
Mothers' Health Protection Act of 1996 and amended by section 703(a) of 
the Mental Health Parity Act of 1996) is amended by adding at the end 
the following new section:

``SEC. 2706. ENSURING CHOICE FOR CONTINUING CARE.

    ``(a) In General.--With respect to health insurance coverage 
provided to enrollees through a managed care organization under a group 
health plan, or through a health insurance issuer providing health 
insurance coverage in connection with a group health plan, such plan or 
issuer may not deny coverage for services provided to such enrollee by 
a continuing care retirement community, skilled nursing facility, or 
other qualified facility in which the enrollee resided prior to a 
hospitalization, regardless of whether such organization is under 
contract with such community or facility if the requirements described 
in subsection (b) are met.
    ``(b) Requirements.--The requirements of this subsection are that--
            ``(1) the service involved is a service for which the 
        managed care organization involved would be required to provide 
        or pay for under its contract with the enrollee if the 
        continuing care retirement community, skilled nursing facility, 
        or other qualified facility were under contract with the 
        organization;
            ``(2) the enrollee involved--
                    ``(A) resided in the continuing care retirement 
                community, skilled nursing facility, or other qualified 
                facility prior to being hospitalized;
                    ``(B) had a contractual or other right to return to 
                the facility after hospitalization; and
                    ``(C) elects to return to the facility after 
                hospitalization, whether or not the residence of the 
                enrollee after returning from the hospital is the same 
                part of the facility in which the beneficiary resided 
                prior to hospitalization;
            ``(3) the continuing care retirement community, skilled 
        nursing facility, or other qualified facility has the capacity 
        to provide the services the enrollee needs;
            ``(4) the continuing care retirement community, skilled 
        nursing facility, or other qualified facility is willing to 
        accept substantially similar payment under the same terms and 
        conditions that apply to similarly situated health care 
        facility providers under contract with the organization 
        involved.
    ``(c) Services To Prevent Hospitalization.--A group health plan or 
health insurance issuer to which this section applies may not deny 
payment for a skilled nursing service provided to a enrollee by a 
continuing care retirement community, skilled nursing facility, or 
other qualified facility in which the enrollee resides, without a 
preceding hospital stay, regardless of whether the plan or issuer is 
under contract with such community or facility, if--
            ``(1) the plan or issuer has determined that the service is 
        necessary to prevent the hospitalization of the enrollee; and
            ``(2) the service to prevent hospitalization is provided as 
        an additional benefit as described in section 417.594 of title 
        42, Code of Federal Regulations.
    ``(d) Rights of Spouses.--A group health plan or health insurance 
issuer to which this section applies shall not deny payment for 
services provided by a skilled nursing facility for the care of an 
enrollee, regardless of whether the plan or issuer is under contract 
with such facility, if the spouse of the enrollee is already a resident 
of such facility and the requirements described in subsection (b) are 
met.
    ``(e) Exceptions.--Subsection (a) shall not apply--
            ``(1) where the attending acute care physician and the 
        enrollee (or a designated representative of the enrollee where 
        the enrollee is physically or mentally incapable of making an 
        election under this paragraph) do not elect to pursue a course 
        of treatment necessitating continuing care; or
            ``(2) unless the community or facility involved--
                    ``(A) meets all applicable licensing and 
                certification requirements of the State in which it is 
                located; and
                    ``(B) agrees to reimbursement for the care of the 
                enrollee at a rate similar to the rate negotiated by 
                the managed care organization with similar providers of 
                care for similar services.
    ``(f) Prohibitions.--A group health plan and a health insurance 
issuer providing health insurance coverage in connection with a group 
health plan may not--
            ``(1) deny to an individual eligibility, or continued 
        eligibility, to enroll or to renew coverage with a managed care 
        organization under the plan, solely for the purpose of avoiding 
        the requirements of this section;
            ``(2) provide monetary payments or rebates to enrollees to 
        encourage such enrollees to accept less than the minimum 
        protections available under this section;
            ``(3) penalize or otherwise reduce or limit the 
        reimbursement of an attending physician because such physician 
        provided care to a enrollee in accordance with this section; or
            ``(4) provide incentives (monetary or otherwise) to an 
        attending physician to induce such physician to provide care to 
        an enrollee in a manner inconsistent with this section.
    ``(g) Rules of Construction.--
            ``(1) HMO not offering benefits.--This section shall not 
        apply with respect to any managed care organization under a 
        group health plan, or through a health insurance issuer 
        providing health insurance coverage in connection with a group 
        health plan, that does not provide benefits for stays in a 
        continuing care retirement community, skilled nursing facility, 
        or other qualified facility.
            ``(2) Cost-sharing.--Nothing in this section shall be 
        construed as preventing a managed care organization under a 
        group health plan, or through a health insurance issuer 
        providing health insurance coverage in connection with a group 
        health plan, from imposing deductibles, coinsurance, or other 
        cost-sharing in relation to benefits for care in a continuing 
        care facility.
    ``(h) Preemption; Exception for Health Insurance Coverage in 
Certain States.--
            ``(1) In general.--The requirements of this section shall 
        not apply with respect to health insurance coverage if there is 
        a State law (as defined in section 2723(d)(1)) for a State that 
        regulates such coverage that is described in any of the 
        following subparagraphs:
                    ``(A) Such State law requires such coverage to 
                provide for referral to a continuing care retirement 
                community, skilled nursing facility, or other qualified 
                facility consistent with this section.
                    ``(B) Such State law requires, in connection with 
                such coverage for continuing care, that the necessity 
                for such care is left to the decision of (or required 
                to be made by) the attending provider in consultation 
                with the enrollee.
                    ``(C) Such State law expands the range of services 
                or facilities covered under this section.
            ``(2) Construction.--Section 731(a)(1) shall not be 
        construed as superseding a State law described in paragraph 
        (1).
    ``(i) Penalties.--An enrollee may enforce the provisions of this 
section in an appropriate Federal district court. An action for 
injunctive relief or damages may be commenced on behalf of the enrollee 
by the enrollee's legal representative. The court may award reasonable 
attorneys' fees to the prevailing party. If a beneficiary dies before 
conclusion of an action under this section, the action may be 
maintained by a representative of the enrollee's estate.
    ``(j) Definitions.--In this section:
            ``(1) Attending acute care provider.--The term `attending 
        acute care provider' means anyone licensed or certified under 
        State law to provide health care services who is operating 
        within the scope of such license and who is primarily 
        responsible for the care of the enrollee.
            ``(2) Continuing care retirement community.--The term 
        `continuing care retirement community' means an organization 
        that provides or arranges for the provision of housing and 
        health-related services to an older person under an agreement 
        effective for the life of the person or for a specified period 
        greater than 1 year.
            ``(3) Managed care organization.--The term `managed care 
        organization' means an organization that provides comprehensive 
        health services to enrollees, directly or under contract or 
        other agreement, on a prepayment basis to such individuals. For 
        purposes of this section, the following shall be considered as 
        managed care organizations:
                    ``(A) A Medicare+Choice plan authorized under 
                section 1851(a) of the Social Security Act.
                    ``(B) Any other entity that manages the cost, 
                utilization, and delivery of health care through the 
                use of predetermined periodic payments to health care 
                providers employed by or under contract or other 
                agreement, directly or indirectly, with the entity.
            ``(4) Other qualified facility.--The term `other qualified 
        facility' means any facility that can provide the services 
        required by the enrollee consistent with State and Federal law.
            ``(5) Skilled nursing facility.--The term `skilled nursing 
        facility' means a facility that meets the requirements of 
        section 1819 of the Social Security Act (42 U.S.C. 1395i-3).''.
    (b) Effective Date.--The amendments made by this section shall 
apply with respect to group health plans for plan years beginning on or 
after January 1, 1998.

SEC. 4. AMENDMENT TO THE PUBLIC HEALTH SERVICE ACT RELATING TO THE 
              INDIVIDUAL MARKET.

    (a) In General.--Subpart 3 of part B of title XXVII of the Public 
Health Service Act (as added by section 605(a) of the Newborn's and 
Mother's Health Protection Act of 1996) is amended by adding at the end 
the following new section:

``SEC. 2752. ENSURING CHOICE FOR CONTINUING CARE.

    ``The provisions of section 2706 shall apply to health maintenance 
organization coverage offered by a health insurance issuer in the 
individual market in the same manner as they apply to such coverage 
offered by a health insurance issuer in connection with a group health 
plan in the small or large group market.''.
    (b) Effective Date.--The amendment made by this section 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, 1998.
                                 <all>