[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 449 Introduced in Senate (IS)]







105th CONGRESS
  1st Session
                                 S. 449

To prohibit the restriction of certain types of medical communications 
             between a health care provider and a patient.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 17, 1997

   Mr. Kyl (for himself, Mr. Wyden, Mr. Kennedy, and Mr. Hutchinson) 
introduced the following bill; which was read twice and referred to the 
                 Committee on Labor and Human Resources

_______________________________________________________________________

                                 A BILL


 
To prohibit the restriction of certain types of medical communications 
             between a health care provider and a patient.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE; FINDINGS.

    (a) Short Title.--This Act may be cited as the ``Patient Right to 
Know Act''.
    (b) Findings.--Congress finds the following:
            (1) Patients need access to all relevant information to 
        make appropriate decisions about their health care.
            (2) Open medical communications between health care 
        providers and their patients is a key to prevention and early 
        diagnosis and treatment, as well as to informed consent and 
        quality, cost-effective care.
            (3) Open medical communications are in the best interests 
        of patients.
            (4) Open medical communications must meet applicable legal 
        and ethical standards of care.
            (5) It is critical that health care providers continue to 
        exercise their best medical, ethical, and moral judgment in 
        advising patients without interference from health plans.
            (6) The offering and operation of health plans affect 
        commerce among the States.
    (c) Purpose.--It is the purpose of this Act to establish a Federal 
standard that protects medical communications between health care 
providers and patients.

SEC. 2. PROHIBITION OF INTERFERENCE WITH CERTAIN MEDICAL 
              COMMUNICATIONS.

    (a) Prohibition.--
            (1) General rule.--The provisions of any contract or 
        agreement, or the operation of any contract or agreement, 
        between an entity operating a health plan (including any 
        partnership, association, or other organization that enters 
        into or administers such a contract or agreement) and a health 
        care provider (or group of health care providers) shall not 
        prohibit or restrict the provider from engaging in medical 
        communications with his or her patient.
            (2) Nullification.--Any contract provision or agreement 
        described in paragraph (1) shall be null and void.
            (3) Prohibition on provisions.--Effective on the date 
        described in section 5, a contract or agreement described in 
        paragraph (1) shall not include a provision that violates 
        paragraph (1).
    (b) Rules of Construction.--Nothing in this Act shall be 
construed--
            (1) to prohibit the enforcement, as part of a contract or 
        agreement to which a health care provider is a party, of any 
        mutually agreed upon terms and conditions, including terms and 
        conditions requiring a health care provider to participate in, 
        and cooperate with, all programs, policies, and procedures 
        developed or operated by a health plan to assure, review, or 
        improve the quality and effective utilization of health care 
        services (if such utilization is according to guidelines or 
        protocols that are based on clinical or scientific evidence and 
        the professional judgment of the provider) but only if the 
        guidelines or protocols under such utilization do not prohibit 
        or restrict medical communications between providers and their 
        patients; or
            (2) to permit a health care provider to misrepresent the 
        scope of benefits covered under a health plan or to otherwise 
        require the plan to reimburse providers for benefits not 
        covered under the plan
    (c) Enforcement.--
            (1) State authority.--Except as otherwise provided in this 
        subsection, each State shall enforce the provisions of this Act 
        with respect to health insurance issuers that issue, sell, 
        renew, or offer health plans in the State.
            (2) Enforcement by secretary.--
                    (A) In general.--Effective on January 1, 1998, if 
                the Secretary, after consultation with the chief 
                executive officer of a State and the insurance 
                commissioner or chief insurance regulatory official of 
                the State, determines that the State has failed to 
                substantially enforce the requirements of this Act with 
                respect to health insurance issuers in the State, the 
                Secretary shall enforce the requirements of this Act 
with respect to such State.
                    (B) Enforcement through imposition of civil money 
                penalty.--
                            (i) In general.--With respect to a State in 
                        which the Secretary is enforcing the 
                        requirements of this Act, an entity operating a 
                        health plan in that State that violates 
                        subsection (a) shall be subject to a civil 
                        money penalty of up to $25,000 for each such 
                        violation.
                            (ii) Procedures.--For purposes of imposing 
                        a civil money penalty under clause (i), the 
                        provisions of subparagraphs (C) through (G) of 
                        section 2722(b)(2) of the Health Insurance 
                        Portability and Accountability Act of 1996 (42 
                        U.S.C. 300gg-22(b)(2)) shall apply except that 
                        the provisions of clause (i) of subparagraph 
                        (C) of such section shall not apply.
            (3) Self-insured plans.--Effective on January 1, 1998, the 
        Secretary of Labor shall enforce the requirements of this 
        section in the case of a health plan not subject to State 
        regulation by reason of section 514(b) of the Employee 
        Retirement Income Security Act of 1974 (29 U.S.C. 1144(b)).
            (4) Rule of construction.--Nothing in this Act shall be 
        construed to affect or modify the provisions of section 514 of 
        the Employee Retirement Income Security Act of 1974 (29 U.S.C. 
        1144).
    (d) No Preemption of More Protective Laws.--A State may establish 
or enforce requirements with respect to the protection of medical 
communications, but only if such requirements are equal to or more 
protective of such communications than the requirements established 
under this section.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Health care provider.--The term ``health care 
        provider'' means anyone licensed or certified under State law 
        to provide health care services who is operating within the 
        scope of such license.
            (2) Health insurance issuer.--The term ``health insurance 
        issuer'' has the meaning given such term in section 2791(b)(2) 
        of the Public Health Service Act (as added by the Health 
        Insurance Portability and Accountability Act of 1996).
            (3) Health plan.--The term ``health plan'' means a group 
        health plan (as defined in section 2791(a) of the Public Health 
        Service Act (as added by the Health Insurance Portability and 
        Accountability Act of 1996)) and any individual health 
        insurance (as defined in section 2791(b)(5)) operated by a 
        health insurance issuer and includes any other health care 
        coverage provided through a private or public entity. In the 
        case of a health plan that is an employee welfare benefit plan 
        (as defined in section 3(1) of the Employee Retirement Income 
        Security Act of 1974), any third party administrator or other 
        person with responsibility for contracts with health care 
        providers under the plan shall be considered, for purposes of 
        enforcement under this section, to be a health insurance issuer 
        operating such health plan.
            (4) Medical communication.--
                    (A) In general.--The term ``medical communication'' 
                means any communication made by a health care provider 
                with a patient of the health care provider (or the 
                guardian or legal representative of such patient) with 
                respect to--
                            (i) the patient's health status, medical 
                        care, or legal treatment options;
                            (ii) any utilization review requirements 
                        that may affect treatment options for the 
                        patient; or
                            (iii) any financial incentives that may 
                        affect the treatment of the patient.
                    (B) Misrepresentation.--The term ``medical 
                communication'' does not include a communication by a 
                health care provider with a patient of the health care 
                provider (or the guardian or legal representative of 
                such patient) if the communication involves a knowing 
                or willful misrepresentation by such provider.
            (5) Secretary.--The term ``Secretary'' means the Secretary 
        of Health and Human Services.

SEC. 4. EFFECTIVE DATE.

    This Act shall take effect on the date of enactment of this Act, 
except that section 2(a)(3) shall take effect 180 days after such date 
of enactment.
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