I 111th CONGRESS 1st Session H. R. 995 IN THE HOUSE OF REPRESENTATIVES February 11, 2009 Mr. Nadler of New York (for himself, Mr. Ackerman, Mr. Bishop of Georgia, Mr. Bishop of New York, Ms. Bordallo, Mrs. Capps, Mrs. Christensen, Mr. Cleaver, Mr. Cohen, Ms. Edwards of Maryland, Mr. Frank of Massachusetts, Mr. Grijalva, Mr. Honda, Ms. Kaptur, Mr. Kucinich, Ms. Lee of California, Mrs. Maloney, Mr. Michaud, Mrs. Napolitano, Ms. Norton, Ms. Schakowsky, Mr. Serrano, Mr. Sires, Ms. Sutton, Ms. Ros-Lehtinen, Ms. Wasserman Schultz, and Mr. Scott of Virginia) introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committee on Education and Labor, 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 Employee Retirement Income Security Act of 1974 to require that group and individual health insurance coverage and group health plans provide coverage for annual screening mammography for women 40 years of age or older and for such screening and annual magnetic resonance imaging for women at high risk for breast cancer if the coverage or plans include coverage for diagnostic mammography for women 40 years of age or older.

1.

Short title; findings

(a)

Short Title

This Act may be cited as the Mammogram and MRI Availability Act of 2009. (b)

Findings

Congress finds the following: (1)An estimated 211,000 women will have been diagnosed with breast cancer and an estimated 40,000 women will have died from breast cancer during 2005. (2)Breast cancer is the second leading cause of death for women in the United States and is the leading cause of death for women between the ages of 40 and 49 in the United States. (3)Breast cancer death rates were reduced by 24 percent from 1990 to 2000. (4)A study sponsored by the National Cancer Institute and published on October 27, 2005, concluded that up to 65 percent of the reduction in the number of breast cancer deaths was directly attributable to screening mammography. (5)An expert panel convened by the National Institutes of Health’s National Cancer Institute recommended on February 21, 2002, that women between the ages of 40 and 49 should be screened every one to two years with mammography. (6)The American Cancer Society recommends that women over the age of 40 receive an annual mammogram. (7)The American Cancer Society, after reviewing research since 2002, urges that women at high risk for breast cancer receive annual magnetic resonance imaging in addition to a mammogram because such imaging may detect small tumors not found by a mammogram.

2.

Coverage of annual screening mammography under group health plans

(a)

Public Health Service Act Amendments

(1)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:

2708.

Standards relating to benefits for screening mammography and magnetic resonance imaging

(a)

Requirements for Coverage of Annual Screening Mammography and Annual Magnetic Resonance Imaging

(1)

In general

A group health plan, and a health insurance issuer offering group health insurance coverage, that provides coverage for diagnostic mammography for any woman who is 40 years of age or older shall provide coverage for annual screening mammography for such a woman and diagnostic mammography, annual screening mammography, and annual magnetic resonance imaging for any high risk woman under terms and conditions that are not less favorable than the terms and conditions for coverage of diagnostic mammography for a woman who is 40 years of age or older. (2)

Definitions

For purposes of this section— (A)The term diagnostic mammography means a radiologic procedure that is medically necessary for the purpose of diagnosing breast cancer and includes a physician’s interpretation of the results of the procedure. (B)The term high risk woman means a woman who— (i)has a known BRCA1 or BRCA2 gene mutation; (ii)has a mother, father, brother, sister, or child with such a gene mutation and has not had genetic testing to determine the existence of such a gene mutation; (iii)has a lifetime risk of breast cancer of 20 percent or greater, according to risk assessment tools that are based mainly on family history; (iv)had radiation therapy to the chest when the woman was between the ages of 10 and 30 years of age; (v)has Li-Fraumeni syndrome, Cowden syndrome, or Bannayan-Riley-Ruvalcaba syndrome, or has a relative described in clause (ii) who has one of such syndromes; or (vi)has another predisposing condition, as determined by a physician, that significantly increases the risk of the woman contracting breast cancer. (C)The term screening mammography means a radiologic procedure provided to a woman for the purpose of early detection of breast cancer and includes a physician’s interpretation of the results of the procedure. (b)

Protections

A group health plan, and a health insurance issuer offering group health insurance coverage in connection with a group health plan, may not— (1)deny coverage for annual screening mammography or annual magnetic resonance imaging on the basis that the coverage is not medically necessary or on the basis that the screening mammography or magnetic resonance imaging, respectively, is not pursuant to a referral, consent, or recommendation by any health care provider; (2)deny to a woman eligibility, or continued eligibility, to enroll or to renew coverage under the terms of the plan, solely for the purpose of avoiding the requirements of this section; (3)provide monetary payments or rebates to women to encourage such women to accept less than the minimum protections available under this section; (4)penalize or otherwise reduce or limit the reimbursement of an attending provider because such provider provided care to an individual participant or beneficiary in accordance with this section; or (5)provide incentives (monetary or otherwise) to an attending provider to induce such provider to provide care to an individual participant or beneficiary in a manner inconsistent with this section. (c)

Rules of Construction

(1)Nothing in this section shall be construed to require a woman who is a participant or beneficiary to undergo annual screening mammography or annual magnetic resonance imaging. (2)This section shall not apply with respect to any group health plan, or any group health insurance coverage offered by a health insurance issuer, which does not provide benefits for diagnostic mammography. (3)Nothing in this section shall be construed as preventing a group health plan or issuer from imposing deductibles, coinsurance, or other cost-sharing in relation to benefits for screening mammography or magnetic resonance imaging under the plan (or under health insurance coverage offered in connection with a group health plan), except that such coinsurance or other cost-sharing for any portion of such benefits may not be greater than such coinsurance or cost-sharing that is otherwise applicable with respect to benefits for diagnostic mammography. (4)Women should (but are not required to) consult with appropriate health care practitioners before undergoing screening mammography or magnetic resonance imaging, but nothing in this section shall be construed as requiring the approval of a health care practitioner before a woman undergoes an annual screening mammography or annual magnetic resonance imaging. (d)

Notice

A group health plan under this part shall comply with the notice requirement under section 715(d) 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. (e)

Level and Type of Reimbursements

Nothing in this section shall be construed to prevent a group health plan or a health insurance issuer offering group health insurance coverage from negotiating the level and type of reimbursement with a provider for care provided in accordance with this section. (f)

Preemption; Exception for Health Insurance Coverage in Certain States

(1)

Screening mammography

The requirements of this section, with respect to annual screening mammography, shall not apply with respect to health insurance coverage for women who are 40 years of age or older or who are high risk women if there is a State law (as defined in section 2723(d)(1)) for a State that regulates such coverage, that requires coverage to be provided for annual screening mammography for women who are 40 years of age or older or who are high risk women (as defined in subsection (a)(2)(B)), respectively, and that provides at least the protections described in subsection (b). (2)

Magnetic resonance imaging

The requirements of this section, with respect to annual magnetic resonance imaging, 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 requires coverage to be provided for annual magnetic resonance imaging for high risk women (as defined in subsection (a)(2)(B)), and that provides at least the protections described in subsection (b). (3)

Construction

Section 2723(a)(1) shall not be construed as superseding a State law described in paragraph (1) or (2).

. (2)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. (b)

ERISA Amendments

(1)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:

715.

Standards relating to benefits for screening mammography and magnetic resonance imaging

(a)

Requirements for Coverage of Annual Screening Mammography and Annual Magnetic Resonance Imaging

(1)

In general

A group health plan, and a health insurance issuer offering group health insurance coverage, that provides coverage for diagnostic mammography for any woman who is 40 years of age or older shall provide coverage for annual screening mammography for such a woman and diagnostic mammography, annual screening mammography, and annual magnetic resonance imaging for any high risk woman under terms and conditions that are not less favorable than the terms and conditions for coverage of diagnostic mammography for a woman who is 40 years of age or older. (2)

Definitions

For purposes of this section— (A)The term diagnostic mammography means a radiologic procedure that is medically necessary for the purpose of diagnosing breast cancer and includes a physician’s interpretation of the results of the procedure. (B)The term high risk woman means a woman who— (i)has a known BRCA1 or BRCA2 gene mutation; (ii)has a mother, father, brother, sister, or child with such a gene mutation and has not had genetic testing to determine the existence of such a gene mutation; (iii)has a lifetime risk of breast cancer of 20 percent or greater, according to risk assessment tools that are based mainly on family history; (iv)had radiation therapy to the chest when the woman was between the ages of 10 and 30 years of age; (v)has Li-Fraumeni syndrome, Cowden syndrome, or Bannayan-Riley-Ruvalcaba syndrome, or has a relative described in clause (ii) who has one of such syndromes; or (vi)has another predisposing condition, as determined by a physician, that significantly increases the risk of the woman contracting breast cancer. (C)The term screening mammography means a radiologic procedure provided to a woman for the purpose of early detection of breast cancer and includes a physician’s interpretation of the results of the procedure. (b)

Protections

A group health plan, and a health insurance issuer offering group health insurance coverage in connection with a group health plan, may not— (1)deny coverage described in subsection (a)(1) on the basis that the coverage is not medically necessary or on the basis that the screening mammography or magnetic resonance imaging is not pursuant to a referral, consent, or recommendation by any health care provider; (2)deny to a woman eligibility, or continued eligibility, to enroll or to renew coverage under the terms of the plan, solely for the purpose of avoiding the requirements of this section; (3)provide monetary payments or rebates to women to encourage such women to accept less than the minimum protections available under this section; (4)penalize or otherwise reduce or limit the reimbursement of an attending provider because such provider provided care to an individual participant or beneficiary in accordance with this section; or (5)provide incentives (monetary or otherwise) to an attending provider to induce such provider to provide care to an individual participant or beneficiary in a manner inconsistent with this section. (c)

Rules of Construction

(1)Nothing in this section shall be construed to require a woman who is a participant or beneficiary to undergo annual screening mammography or annual magnetic resonance imaging. (2)This section shall not apply with respect to any group health plan, or any group health insurance coverage offered by a health insurance issuer, which does not provide benefits for diagnostic mammography. (3)Nothing in this section shall be construed as preventing a group health plan or issuer from imposing deductibles, coinsurance, or other cost-sharing in relation to benefits for screening mammography or magnetic resonance imaging under the plan (or under health insurance coverage offered in connection with a group health plan), except that such coinsurance or other cost-sharing for any portion of such benefits may not be greater than such coinsurance or cost-sharing that is otherwise applicable with respect to benefits for diagnostic mammography. (4)Women should (but are not required to) consult with appropriate health care practitioners before undergoing screening mammography or magnetic resonance imaging, but nothing in this section shall be construed as requiring the approval of a health care practitioner before a woman undergoes an annual screening mammography or annual magnetic resonance imaging. (d)

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 summary 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. (e)

Level and Type of Reimbursements

Nothing in this section shall be construed to prevent a group health plan or a health insurance issuer offering group health insurance coverage from negotiating the level and type of reimbursement with a provider for care provided in accordance with this section. (f)

Preemption; Exception for Health Insurance Coverage in Certain States

(1)

Screening mammography

The requirements of this section, with respect to annual screening mammography for women who are 40 years of age or older or for high risk women, shall not apply with respect to health insurance coverage if there is a State law (as defined in section 731(d)(1)) for a State that regulates such coverage, that requires coverage to be provided for annual screening mammography for women who are 40 years of age or older or for high risk women (as defined in subsection (a)(2)(B)), respectively, and that provides at least the protections described in subsection (b). (2)

Magnetic resonance imaging

The requirements of this section, with respect to annual magnetic resonance imaging, shall not apply with respect to health insurance coverage if there is a State law (as defined in section 731(d)(1)) for a State that regulates such coverage, that requires coverage to be provided for annual magnetic resonance imaging for high risk women (as defined in subsection (a)(2)(B)), and that provides at least the protections described in subsection (b). (3)

Construction

Section 731(a)(1) shall not be construed as superseding a State law described in paragraph (1) or (2).

. (2)Section 731(c) of such Act (29 U.S.C. 1191(c)) is amended by striking section 711 and inserting sections 711 and 715. (3)Section 732(a) of such Act (29 U.S.C. 1191a(a)) is amended by striking section 711 and inserting sections 711 and 715. (4)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. Standards relating to benefits for screening mammography and magnetic resonance imaging. . (c)

Effective Dates

(1)Subject to paragraph (2), the amendments made by this section shall apply with respect to group health plans (and health insurance coverage offered in connection with group health plans) for plan years beginning on or after 1 year after the date of the enactment of this Act. (2)(A)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 the date of the enactment of this Act, the amendments made by this section 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 the enactment of this Act); or (ii)1 year after the date of the enactment of this Act. (B)For purposes of subparagraph (A)(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 this section shall not be treated as a termination of such collective bargaining agreement.

3.

Coverage of annual screening mammography and annual magnetic resonance imaging under individual health coverage

(a)

In General

Part B of title XXVII of the Public Health Service Act is amended by inserting after section 2753 the following new section:

2754.

Standards relating to benefits for screening mammography and magnetic resonance imaging

(a)

In General

The provisions of section 2708 (other than subsections (d) and (f)) shall apply to health insurance coverage offered by a health insurance issuer in the individual market in the same manner as it applies 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 715(d) 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. (c)

Preemption; Exception for Health Insurance Coverage in Certain States

(1)

Annual screening mammography

The requirements of this section, with respect to annual screening mammography for women who are 40 years of age or older or for high risk women, 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 requires coverage in the individual health insurance market to be provided for annual screening mammography for women who are 40 years of age or older or for high risk women, respectively, and that provides at least the protections described in section 2708(b) (as applied under subsection (a)). (2)

Magnetic resonance imaging

The requirements of this section, with respect to annual magnetic resonance imaging, 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 requires coverage in the individual health insurance market to be provided for annual magnetic resonance imaging for high risk women, and that provides at least the protections described in section 2708(b) (as applied under subsection (a)). (3)

Construction

Section 2762(a) shall not be construed as superseding a State law described in paragraph (1) or (2).

. (b)

Conforming Amendment

Section 2762(b)(2) of such Act (42 U.S.C. 300gg–63(b)(2)) is amended by striking section 2751 and inserting sections 2751 and 2754. (c)

Effective Date

The amendments made by this section shall apply with respect to health insurance coverage offered, sold, issued, or renewed in the individual market on or after the date that is 1 year after the date of the enactment of this Act.