[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2457 Introduced in House (IH)]

111th CONGRESS
  1st Session
                                H. R. 2457

   To amend the Employee Retirement Income Security Act of 1974, the 
  Public Health Service Act, and the Internal Revenue Code to require 
   that group health plans and issuers of health insurance coverage 
                 provide coverage for second opinions.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                              May 18, 2009

  Mrs. Davis of California (for herself, Mr. McCotter, Mr. Rush, Mr. 
    Wittman, and Mr. Hare) introduced the following bill; which was 
 referred to the Committee on Energy and Commerce, and in addition to 
the Committees on Education and Labor and Ways and Means, 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 Employee Retirement Income Security Act of 1974, the 
  Public Health Service Act, and the Internal Revenue Code to require 
   that group health plans and issuers of health insurance coverage 
                 provide coverage for second opinions.

    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 ``Right to a Second Medical Opinion 
Act of 2009''.

SEC. 2. COVERAGE OF SECOND OPINIONS.

    (a) Group Health Plans.--
            (1) ERISA amendments.--
                    (A) 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. 715. COVERAGE OF SECOND OPINIONS.

    ``(a) Coverage of Second Opinions.--A group health plan, and a 
health insurance issuer that provides health insurance coverage in 
connection with a group health plan, shall provide coverage for a 
second opinion (as defined in subsection (b)(1)), if--
            ``(1) the second opinion is requested by--
                    ``(A) a participant or beneficiary; or
                    ``(B) a health care practitioner (as defined in 
                subsection (b)(2))--
                            ``(i) who, with respect to a medical 
                        condition, is treating or has proposed a 
                        treatment plan for the participant or 
                        beneficiary; and
                            ``(ii) who has the consent of the 
                        participant or beneficiary to make the request; 
                        and
            ``(2)(A) the participant or beneficiary questions a 
        diagnosis, treatment plan, surgical procedure, or therapeutic 
        procedure for a medical condition that threatens loss of life, 
        quality of life, loss of limb, loss of bodily function, loss of 
        cognitive function, or substantial impairment of the mind or 
        body (including a serious chronic condition or infection);
            ``(B) the clinical indications with respect to a medical 
        condition are not conclusive;
            ``(C) a diagnosis for a medical condition is in doubt due 
        to conflicting test results;
            ``(D) the health care practitioner treating the participant 
        or beneficiary for a medical condition is unable to diagnose 
        the condition;
            ``(E) the treatment plan being used by the participant or 
        beneficiary for a medical condition is not causing improvement 
        in the condition within an appropriate period of time given the 
        diagnosis and plan of care as expected for such condition; or
            ``(F) the medical condition under treatment accelerates or 
        continues.
    ``(b) Coverage of a Second Opinion and Related Definitions.--For 
purposes of this section:
            ``(1) Coverage of a second opinion.--The term `coverage of 
        a second opinion' means, with respect to a medical condition, 
        coverage for--
                    ``(A) at least three appointments for the 
                participant or beneficiary with the qualified second 
                opinion physician (as defined in paragraph (7)) for the 
                purposes of making and reviewing a second opinion (as 
                defined in paragraph (8)) for the medical condition; 
                and
                    ``(B) ancillary diagnostic tests conducted or 
                ordered by the qualified second opinion physician for 
                the purpose of making such second opinion to the extent 
                such tests would be covered by the plan or issuer 
                involved if the tests were conducted to provide 
                information to a participating physician (as defined in 
                paragraph (5)) for the purpose of making the initial 
                opinion (as defined in paragraph (3)) with respect to 
                the medical condition.
            ``(2) Health care practitioner.--The term `health care 
        practitioner' means a physician or a nurse practitioner.
            ``(3) Initial opinion.--The term `initial opinion' means, 
        with respect to a medical condition, the first opinion for such 
        condition.
            ``(4) Opinion.--The term `opinion' means, for a medical 
        condition, an opinion respecting the diagnosis or treatment 
        plan for the condition that is made by a health care 
        practitioner for a participant or beneficiary.
            ``(5) Participating physician.--The term `participating 
        physician' means, with respect to a group health plan or an 
        issuer of health insurance coverage, a physician who 
        participates in a preferred physician network (or similar 
        arrangement) recognized under such coverage of a plan or 
        issuer.
            ``(6) Physician.--The term `physician' has the meaning 
        given such term in section 1861(r)(1) of the Social Security 
        Act (42 U.S.C. 1935x(r)(1)).
            ``(7) Qualified second opinion physician.--The term 
        `qualified second opinion physician' means, with respect to a 
        medical condition, a physician who possesses a clinical 
        background, including training and expertise or a history of 
        treating patients, related to the condition.
            ``(8) Second opinion.--The term `second opinion' means, 
        with respect to a medical condition, an opinion made by a 
        qualified second opinion physician for a medical condition for 
        which another health care practitioner (as defined in paragraph 
        (2)) made an initial opinion (as defined in paragraph (3)).
    ``(c) Financial Responsibility, Terms of Coverage, and 
Limitations.--
            ``(1) Financial responsibility.--
                    ``(A) Participant.--The financial responsibility of 
                the participant or beneficiary (including deductibles, 
                coinsurance, co-payments, and other cost sharing) under 
                a group health plan or health insurance coverage for a 
                second opinion under subsection (a) shall be the same 
                as the financial responsibility of the participant or 
                beneficiary under such plan or coverage for comparable 
                services furnished by a participating physician in 
                connection with an initial opinion.
                    ``(B) Plan or issuer.--Subject to paragraph (3), 
                the plan or issuer of health insurance coverage shall 
                reimburse the second opinion physician for the total 
                costs of the physician's services that are in excess of 
                the financial responsibility of the participant under 
                subparagraph (A).
            ``(2) Terms of coverage.--The terms of coverage under a 
        group health plan or health insurance coverage for a second 
        opinion under subsection (a) shall be the same as the terms of 
        coverage under such plan or coverage for an initial opinion 
        made by a participating physician.
            ``(3) Use of networks.--The plan or issuer may limit 
        coverage of a second opinion to a participating physician, but 
        only if there is a participating physician who--
                    ``(A) is a qualified second opinion physician, for 
                purposes of the second opinion requested under 
                subsection (a)(1);
                    ``(B) is located within 50 miles of the home of the 
                participant or beneficiary with respect to which a 
                request was made under subsection (a)(1); and
                    ``(C) has an initial appointment available for such 
                participant or beneficiary within 30 days of date on 
                which such request was made.
            ``(4) Preapproval.--
                    ``(A) In general.--Subject to subparagraph (B) and 
                subsection (e), the plan or issuer may require 
                preapproval for the second opinion from the plan or 
                issuer, but only in accordance with this paragraph and 
                with paragraph (2).
                    ``(B) Rules for preapproval.--
                            ``(i) Notice of approval or denial.--A plan 
                        or issuer that requires preapproval of second 
                        opinions shall provide notice to the 
                        participant or beneficiary about the plan or 
                        issuer's decision concerning a request for 
                        preapproval of a second opinion for such 
                        participant or beneficiary not later than 10 
                        business days after the date on which the 
                        participant or beneficiary requests the 
                        preapproval.
                            ``(ii) Prohibition.--A plan or issuer may 
                        not require preapproval of a second opinion if 
                        the participant or beneficiary requesting such 
                        approval faces an imminent threat to health 
                        (including the potential loss of life, limb, 
                        major bodily function) and a delay in receiving 
                        a second opinion would be detrimental to the 
                        participant's or beneficiary's ability to 
                        regain maximum function. In such cases, the 
                        provider is required to reimburse the 
                        beneficiary for the costs of the services and 
                        items described in subparagraphs (A) and (B) of 
                        subsection (b)(1) that are related to the 
                        second opinion, minus the allowable copayments 
                        determined under paragraph (1), if the 
                        beneficiary paid for such opinion from personal 
                        sources.
    ``(d) Consultation Report.--The plan or issuer may condition 
payment for the second opinion under subsection (a) on the qualified 
second opinion physician providing to the participant or beneficiary 
and to the health care practitioner who made the initial opinion a 
consultation report that includes, with respect to the medical 
condition for which the second opinion was made, any diagnosis of such 
condition made by the qualified second opinion physician and any 
recommended procedures, tests, or treatments that the qualified second 
opinion physician believes are appropriate.
    ``(e) Denial of Coverage or Preapproval.--If a plan or issuer 
denies coverage for a second opinion or denies preapproval for a second 
opinion under subsection (c)(4), the plan or issuer shall, not later 
than 3 business days after the date of such denial--
            ``(1) notify the participant or beneficiary in writing of 
        the reasons for the denial;
            ``(2) inform the participant or beneficiary of such 
        participant's or beneficiary's right to file an appeal with the 
        plan or issuer; and
            ``(3) inform the participant or beneficiary of the process 
        for appealing the denial.
    ``(f) Appeals.--
            ``(1) In general.--The plan or issuer shall establish a 
        process for a participant or beneficiary to appeal when 
        preapproval for a second opinion or coverage of a second 
        opinion is denied by the plan or issuer.
            ``(2) Report to secretary.--No later than 90 days after the 
        date of enactment of this section, the plan or issuer shall 
        submit to the Secretary a report describing the appeal process 
        developed by the plan or issuer under paragraph (1).
    ``(g) Timelines Required.--
            ``(1) In general.--Not later than 90 days after the date of 
        enactment of this section and not later than 30 days after the 
        date a timeline required under this subsection is amended, each 
        plan or issuer shall file with the Secretary a timeline for--
                    ``(A) providing reimbursement of claims submitted 
                for second opinions; and
                    ``(B) if required by the plan or issuer, responding 
                to requests for preapproval of second opinions under 
                subsection (c)(4).
            ``(2) Public availability.--Any timeline filed under 
        paragraph (1) shall be available to the public upon request.
    ``(h) Notice.--The imposition of the requirement of this section 
shall be treated as a material modification in the terms of the plan 
described in section 102(a), 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.
    ``(i) Construction Regarding Additional Opinions.--Nothing in this 
section shall be construed to prevent the plan or issuer, based on its 
independent determination, from providing coverage to a participant or 
beneficiary for additional medical opinions.
    ``(j) Service Plan Contacts.--The Secretary shall deem health care 
service plan contracts that provide benefits to participants or 
beneficiaries through preferred practitioner contracting arrangements 
to have satisfied the requirements of this section if, subject to all 
other terms and conditions of the contract that apply generally to all 
other benefits, access to and coverage for second opinions is not 
limited.''.
            (B) Section 731(c) of such Act (29 U.S.C. 1191(c)) is 
        amended by striking ``section 711'' and inserting ``sections 
        711 and 715''.
            (C) Section 732(a) of such Act (29 U.S.C. 1191a(a)) is 
        amended by striking ``section 711'' and inserting ``sections 
        711 and 715''.
            (D) The table of contents in section 1 of such Act is 
        amended by inserting after the item relating to section 714 the 
        following new item:

``Sec. 715. Coverage of second opinions.''.
            (2) Public health service act amendments.--
                    (A) In general.--Subpart 2 of part A of title XXVII 
                of the Public Health Service Act (42 U.S.C. 300gg-4 et 
                seq.) is amended by adding at the end the following new 
                section:

``SEC. 2708 COVERAGE OF SECOND OPINIONS.

    ``The provisions of section 715 of the Employee Retirement Income 
Security Act of 1974, except for subsection (h) of such section, 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.''.
                    (B) Clerical 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 
                2708''.
            (3) Internal revenue code amendments.--
                    (A) In general.--Subchapter B of chapter 100 of the 
                Internal Revenue Code of 1986 (26 U.S.C. 9811 et seq.) 
                is amended by adding at the end the following:

``SEC. 9814 COVERAGE OF SECOND OPINIONS.

    ``The provisions of section 715 of the Employee Retirement Income 
Security Act of 1974, except for subsection (h) of such section, shall 
apply to group health plans as if included in this subchapter.''.
                    (B) Conforming amendment.--The table of sections 
                for subchapter B of chapter 100 of such Code is amended 
                by inserting after the item relating to section 9813 
                the following new item:

``Sec. 9814. Coverage of second opinions.''.
    (b) Individual Health Insurance.--
            (1) In general.--Subpart 2 of part B of title XXVII of the 
        Public Health Service Act is amended by inserting at the end 
        the following new section:

``SEC. 2754 COVERAGE OF SECOND OPINIONS.

    ``The provisions of section 2708 shall apply to health insurance 
coverage offered by a health insurance issuer in the individual market 
in the same manner as such provisions 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.''.
            (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 2754''.
    (c) Coordination of Administration.--The Secretary of Labor, the 
Secretary of the Treasury, and the Secretary of Health and Human 
Services shall ensure, through the execution of an interagency 
memorandum of understanding among such Secretaries, that--
            (1) regulations, rulings, and interpretations issued by 
        such Secretaries relating to the same matter over which two or 
        more such Secretaries have responsibility under the provisions 
        of this section (and the amendments made thereby) are 
        administered so as to have the same effect at all times; and
            (2) the enforcement of such regulations, rulings, and 
        interpretations is coordinated by such Secretaries for the 
        purposes of having a consistent enforcement strategy that 
        avoids duplication of enforcement efforts and assigns 
        priorities in enforcement.
    (d) Effective Dates.--
            (1) Group health plans and group health insurance 
        coverage.--Subject to paragraph (3), the amendments made by 
        subsection (a) apply with respect to group health plans for 
        plan years beginning on or after January 1, 2010.
            (2) Individual health insurance coverage.--The amendments 
        made by subsection (b) apply with respect to health insurance 
        coverage offered, sold, issued, renewed, in effect, or operated 
        in the individual market on or after January 1, 2010.
            (3) Collective bargaining exception.--In the case of a 
        group health plan maintained pursuant to one or more collective 
        bargaining agreements between employee representatives and one 
        or more employers ratified before the date of enactment of this 
        Act, the amendments made to subsection (a) shall not apply to 
        plan years beginning before the later of--
                    (A) the date on which the last collective 
                bargaining agreement relating to the plan terminates 
                (determined without regard to any extension thereof 
                agreed to after the date of the enactment of this Act), 
                or
                    (B) January 1, 2010.
        For purposes of subparagraph (A), 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 subsection (a) shall not be treated as a termination 
        of such collective bargaining agreement.
                                 <all>