[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 3223 Introduced in Senate (IS)]

111th CONGRESS
  2d Session
                                S. 3223

 To amend the Employee Retirement Income Security Act of 1974 and the 
 Public Health Service Act to provide parity under group health plans 
 and group health insurance coverage for the provision of benefits for 
  prosthetics and custom orthotics and benefits for other medical and 
                           surgical services.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 19, 2010

 Ms. Snowe (for herself and Mr. Harkin) introduced the following bill; 
     which was read twice and referred to the Committee on Health, 
                     Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
 To amend the Employee Retirement Income Security Act of 1974 and the 
 Public Health Service Act to provide parity under group health plans 
 and group health insurance coverage for the provision of benefits for 
  prosthetics and custom orthotics and benefits for other medical and 
                           surgical services.

    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 ``Prosthetics and Custom Orthotics 
Parity Act of 2010''.

SEC. 2. FINDINGS AND PURPOSE.

    (a) Findings.--Congress makes the following findings:
            (1) There are more than 1,700,000 people in the United 
        States living with limb loss, many of whom are appropriate 
        candidates for prosthetic care. A comparable number experience 
        trauma, illness, or disability that results in musculoskeletal 
        or neuromuscular impairment of the limbs, back, and neck 
        requiring the use of orthotic care.
            (2) Every year, there are more than 130,000 people in the 
        United States who undergo amputation procedures.
            (3) In addition, United States military personnel serving 
        in Iraq and Afghanistan and around the world have sustained 
        traumatic injuries resulting in amputation and musculoskeletal 
        or neuromuscular injury.
            (4) The number of amputations in the United States is 
        projected to increase in the years ahead due to the rising 
        incidence of diabetes and other chronic illness.
            (5) Those experiencing limb loss and limb dysfunction can 
        and want to regain their lives as productive members of 
        society.
            (6) Prosthetic and orthotic care often enables amputees and 
        others with orthopedic impairments to continue working and 
        living productive lives.
            (7) Insurance companies have begun to limit reimbursement 
        of prosthetic and custom orthotic care costs to unrealistic 
        levels and often restrict coverage over an individual's 
        lifetime, which shifts costs onto the Medicare and Medicaid 
        programs.
            (8) Eighteen States have addressed this problem and have 
        prosthetic or orthotic parity legislation.
            (9) Prosthetic and orthotic parity legislation has been 
        introduced and is being actively considered in 20 States.
            (10) The States in which prosthetic or orthotic parity laws 
        have been enacted have found there to be minimal or no 
        increases in insurance premiums and have reduced Medicare and 
        Medicaid costs.
            (11) Prosthetic or orthotic parity legislation will not add 
        to the size of government or to the costs associated with the 
        Medicare and Medicaid programs.
            (12) If coverage for prosthetics and custom orthotics are 
        offered by a group health insurance policy, then providing such 
        prosthetic coverage on par with other medical and surgical 
        benefits will not increase the incidence of amputations or the 
        number of individuals for which a prosthetic or custom orthotic 
        device would be medically necessary and appropriate.
            (13) In States where prosthetic or orthotic parity 
        legislation has been enacted, amputees and others with 
        orthopedic impairments are able to return to productive lives, 
        State funds have been saved, and the health insurance industry 
        has continued to prosper.
            (14) Prosthetic and orthotic devices and related services 
        allow people to return more quickly to their preexisting work.
            (15) States have, and should continue to be permitted to, 
        create consumer protections that exceed the Federal floor of 
        protection provided for in this Act.
    (b) Purpose.--It is the purpose of this Act to require that each 
group health plan that provides medical and surgical benefits and also 
provides coverage for prosthetics or custom orthotics (or both), 
provide such coverage under terms and conditions that are no less 
favorable than the terms and conditions under which medical and 
surgical benefits are provided under such plan.

SEC. 3. PROSTHETICS AND CUSTOM ORTHOTICS PARITY.

    (a) ERISA.--
            (1) In general.--Subpart B of part 7 of subtitle B 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:

``SEC. 715. PROSTHETICS AND CUSTOM ORTHOTICS PARITY.

    ``(a) In General.--In the case of a group health plan (or health 
insurance coverage offered in connection with a group health plan) that 
provides medical and surgical benefits and also provides benefits for 
prosthetics or custom orthotics (as defined under paragraphs (1) and 
(2) of subsection (e)) (or both)--
            ``(1) such benefits for prosthetics or custom orthotics (or 
        both) under the plan (or coverage) shall be provided under 
        terms and conditions that are no less favorable than the terms 
        and conditions applicable to substantially all medical and 
        surgical benefits provided under the plan (or coverage);
            ``(2) such benefits for prosthetics or custom orthotics (or 
        both) under the plan (or coverage) may not be subject to 
        separate financial requirements (as defined in subsection 
        (e)(2)) that are applicable only with respect to such benefits, 
        and any financial requirements applicable to such benefits 
        shall be no more restrictive than the financial requirements 
        applicable to substantially all medical and surgical benefits 
        provided under the plan (or coverage); and
            ``(3) any treatment limitations (as defined in subsection 
        (e)(3)) applicable to such benefits for prosthetics or custom 
        orthotics (or both) under the plan (or coverage) may not be 
        more restrictive than the treatment limitations applicable to 
        substantially all medical and surgical benefits provided under 
        the plan (or coverage).
    ``(b) In Network and Out-of-Network Standards.--
            ``(1) In general.--In the case of a group health plan (or 
        health insurance coverage offered in connection with a group 
        health plan) that provides medical or surgical benefits and 
        also provides benefits for prosthetics or custom orthotics (or 
        both), and that provides both in-network benefits for 
        prosthetics and custom orthotics and out-of-network benefits 
        for prosthetics and custom orthotics, the requirements of this 
        section shall apply separately with respect to benefits under 
        the plan (or coverage) on an in-network basis and benefits 
        provided under the plan (or coverage) on an out-of-network 
        basis.
            ``(2) Clarification.--Nothing in paragraph (1) shall be 
        construed as requiring that a group health plan (or health 
        insurance coverage offered in connection with a group health 
        plan) eliminate an out-of-network provider option from such 
        plan (or coverage) pursuant to the terms of the plan (or 
        coverage).
    ``(c) Patient Access.--A group health plan (or health insurance 
coverage offered in connection with a group health plan) described in 
subsection (a) that does not provide coverage for benefits outside of a 
network shall ensure that such provider network is adequate to ensure 
enrollee access to prosthetic and custom orthotic devices and related 
services provided by appropriately credentialed practitioners and 
accredited suppliers of prosthetics and custom orthotics.
    ``(d) Additional Requirements.--
            ``(1) Prior authorization.--In the case of a group health 
        plan (or health insurance coverage offered in connection with a 
        group health plan) that requires, as a condition of coverage or 
        payment for prosthetics or custom orthotics (or both) under the 
        plan (or coverage), prior authorization, such prior 
        authorization must be required in the same manner as prior 
        authorization is required by the plan (or coverage) as a 
        condition of coverage or payment for all similar medical and 
        surgical benefits provided under the plan (or coverage).
            ``(2) Limitation on mandated benefits.--Coverage for 
        required benefits for prosthetics and custom orthotics under 
        this section may be limited to coverage of the most appropriate 
        device or component model that meets the medical requirements 
        of the patient, as determined by the treating physician of the 
        patient involved.
            ``(3) Coverage for repair or replacement.--Benefits for 
        prosthetics and custom orthotics required under this section 
        shall include coverage for the repair or replacement of 
        prosthetics and custom orthotics, if the repair or replacement 
        is due to normal wear and tear, irreparable damage, a change in 
        the condition of the patient as determined by the treating 
        physician, or otherwise determined appropriate by the treating 
        physician of the patient involved.
            ``(4) Annual or lifetime dollar limitations.--A group 
        health plan (or health insurance coverage offered in connection 
        with a group health plan) shall not impose any annual or 
        lifetime dollar limitation on benefits for prosthetics and 
        custom orthotics required to be covered under this section 
        unless such limitation applies in the aggregate to all medical 
        and surgical benefits provided under the plan (or coverage) and 
        benefits for prosthetics and custom orthotics.
    ``(e) Definitions.--In this section:
            ``(1) Prosthetics.--The term `prosthetics' means those 
        devices and components that may be used to replace, in whole or 
        in part, an arm or leg, as well as the services required to do 
        so and includes external breast prostheses incident to 
        mastectomy resulting from breast cancer.
            ``(2) Custom orthotics.--The term `custom orthotics' means 
        the following:
                    ``(A) Custom-fabricated orthotics and related 
                services, which include custom-fabricated devices that 
                are individually made for a specific patient, as well 
                as all services and supplies that are medically 
                necessary for the effective use of the orthotic device 
                and instructing the patient in the use of the device. 
                No other patient would be able to use this particular 
                orthosis. A custom-fabricated orthosis is a device 
                which is fabricated based on clinically derived and 
                rectified castings, tracings, measurements, or other 
                images (such as x-rays) of the body part. The 
                fabrication may involve using calculations, templates 
                and component parts. This process requires the use of 
                basic materials and involves substantial work such as 
                vacuum forming, cutting, bending, molding, sewing, 
                drilling and finishing prior to fitting on the patient. 
                Custom-fabricated devices may be furnished only by an 
                appropriately credentialed (certified or licensed) 
                practitioner and accredited supplier in Orthotics or 
                Prosthetics. Such devices and related services are 
                represented by the set of L-codes under the Healthcare 
                Common Procedure Coding System describing this care 
                listed on the date of enactment of this section in 
                Centers for Medicare & Medicaid Services Transmittal 
                656.
                    ``(B) Custom-fitted high orthotics and related 
                services, which include prefabricated devices that are 
                manufactured with no specific patient in mind, but that 
                are appropriately sized, adapted, modified, and 
                configured (with the required tools and equipment) to a 
                specific patient in accordance with a prescription, and 
                which no other patient would be able to use, as well as 
                all services and supplies that are medically necessary 
                for the effective use of the orthotic device and 
                instructing the patient in the use of the device. 
                Custom-fitted high devices may be furnished only by an 
                appropriately credentialed (certified or licensed) 
                practitioner and accredited supplier in Orthotics or 
                Prosthetics. Such devices and related services are 
                represented by the existing set of L-codes under the 
                Healthcare Common Procedure Coding System describing 
                this care listed on the date of enactment of this 
                section in Centers for Medicare & Medicaid Services 
                Transmittal 656.
        For purposes of subparagraphs (A) and (B), Centers for Medicare 
        & Medicaid Services Transmittal 656, upon modification or 
        reissuance by the Centers for Medicare & Medicaid Services to 
        reflect new code additions and coding changes for prosthetics 
        and custom orthotics, shall be the version of the Transmittal 
        used for purposes of such subparagraphs.
            ``(3) Financial requirements.--The term `financial 
        requirements' includes deductibles, coinsurance, co-payments, 
        other cost sharing, and limitations on the total amount that 
        may be paid by a participant or beneficiary with respect to 
        benefits under the plan or health insurance coverage and also 
        includes the application of annual and lifetime limits.
            ``(4) Treatment limitations.--The term `treatment 
        limitations' includes limits on the frequency of treatment, 
        number of visits, days of coverage, or other similar limits on 
        the scope or duration of treatment.''.
            (2) Clerical amendment.--The table of contents in section 1 
        of the Employee Retirement Income Security Act of 1974 is 
        amended by inserting after the item relating to section 714 the 
        following:

``Sec. 715. Prosthetics and custom orthotics parity.''.
    (b) PHSA.--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:

``SEC. 2708. PROSTHETICS AND CUSTOM ORTHOTICS PARITY.

    ``(a) In General.--In the case of a group health plan (or health 
insurance coverage offered in connection with a group health plan) that 
provides medical and surgical benefits and also provides benefits for 
prosthetics or custom orthotics (as defined under paragraphs (1) and 
(2) of subsection (e)) (or both)--
            ``(1) such benefits for prosthetics or custom orthotics (or 
        both) under the plan (or coverage) shall be provided under 
        terms and conditions that are no less favorable than the terms 
        and conditions applicable to substantially all medical and 
        surgical benefits provided under the plan (or coverage);
            ``(2) such benefits for prosthetics or custom orthotics (or 
        both) under the plan (or coverage) may not be subject to 
        separate financial requirements (as defined in subsection 
        (e)(2)) that are applicable only with respect to such benefits, 
        and any financial requirements applicable to such benefits 
        shall be no more restrictive than the financial requirements 
        applicable to substantially all medical and surgical benefits 
        provided under the plan (or coverage); and
            ``(3) any treatment limitations (as defined in subsection 
        (e)(3)) applicable to such benefits for prosthetics or custom 
        orthotics (or both) under the plan (or coverage) may not be 
        more restrictive than the treatment limitations applicable to 
        substantially all medical and surgical benefits provided under 
        the plan (or coverage).
    ``(b) In Network and Out-of-Network Standards.--
            ``(1) In general.--In the case of a group health plan (or 
        health insurance coverage offered in connection with a group 
        health plan) that provides medical and surgical benefits and 
        also provides benefits for prosthetics or custom orthotics (or 
        both), and that provides both in-network and out-of-network 
        benefits for prosthetics or custom orthotics (or both), the 
        requirements of this section shall apply separately with 
        respect to benefits under the plan (or coverage) on an in-
        network basis and benefits provided under the plan (or 
        coverage) on an out-of-network basis.
            ``(2) Clarification.--Nothing in paragraph (1) shall be 
        construed as requiring that a group health plan (or health 
        insurance coverage offered in connection with a group health 
        plan) eliminate an out-of-network provider option from such 
        plan (or coverage) pursuant to the terms of the plan (or 
        coverage).
    ``(c) Patient Access.--A group health plan (or health insurance 
coverage offered in connection with a group health plan) described in 
subsection (a) that does not provide coverage for benefits outside of a 
network shall ensure that such provider network is adequate to ensure 
enrollee access to prosthetic and custom orthotic devices and related 
services provided by appropriately credentialed practitioners and 
accredited suppliers of prosthetics and custom orthotics.
    ``(d) Additional Requirements.--
            ``(1) Prior authorization.--In the case of a group health 
        plan (or health insurance coverage offered in connection with a 
        group health plan) that requires, as a condition of coverage or 
        payment for prosthetics or custom orthotics (or both) under the 
        plan (or coverage), prior authorization, such prior 
        authorization must be required in the same manner as prior 
        authorization is required by the plan (or coverage) as a 
        condition of coverage or payment for all similar medical and 
        surgical benefits provided under the plan (or coverage).
            ``(2) Limitation on mandated benefits.--Coverage for 
        required benefits for prosthetics and custom orthotics under 
        this section may be limited to coverage of the most appropriate 
        device or component model that adequately meets the medical 
        requirements of the patient, as determined by the treating 
        physician of the patient involved.
            ``(3) Coverage for repair or replacement.--Benefits for 
        prosthetics and custom orthotics required under this section 
        shall include coverage for the repair or replacement of 
        prosthetics and custom orthotics, if the repair or replacement 
        is due to normal wear and tear, irreparable damage, a change in 
        the condition of the patient as determined by the treating 
        physician, or otherwise determined appropriate by the treating 
        physician of the patient involved.
            ``(4) Annual or lifetime dollar limitations.--A group 
        health plan (or health insurance coverage offered in connection 
        with a group health plan) shall not impose any annual or 
        lifetime dollar limitation on benefits for prosthetics and 
        custom orthotics required to be covered under this section 
        unless such limitation applies in the aggregate to all medical 
        and surgical benefits provided under the plan (or coverage) and 
        benefits for prosthetics and custom orthotics.
    ``(e) Definitions.--In this section:
            ``(1) Prosthetics.--The term `prosthetics' means those 
        devices and components that may be used to replace, in whole or 
        in part, an arm or leg, as well as the services required to do 
        so and includes external breast prostheses incident to 
        mastectomy resulting from breast cancer.
            ``(2) Custom orthotics.--The term `custom orthotics' means 
        the following:
                    ``(A) Custom-fabricated orthotics and related 
                services, which include custom-fabricated devices that 
                are individually made for a specific patient, as well 
                as all services and supplies that are medically 
                necessary for the effective use of the orthotic device 
                and instructing the patient in the use of the device. 
                No other patient would be able to use this particular 
                orthosis. A custom-fabricated orthosis is a device 
                which is fabricated based on clinically derived and 
                rectified castings, tracings, measurements, or other 
                images (such as x-rays) of the body part. The 
                fabrication may involve using calculations, templates 
                and component parts. This process requires the use of 
                basic materials and involves substantial work such as 
                vacuum forming, cutting, bending, molding, sewing, 
                drilling and finishing prior to fitting on the patient. 
                Custom-fabricated devices may be furnished only by an 
                appropriately credentialed (certified or licensed) 
                practitioner and accredited supplier in Orthotics or 
                Prosthetics. Such devices and related services are 
                represented by the set of L-codes under the Healthcare 
                Common Procedure Coding System describing this care 
                listed on the date of enactment of this section in 
                Centers for Medicare & Medicaid Services Transmittal 
                656.
                    ``(B) Custom-fitted high orthotics and related 
                services, which include prefabricated devices that are 
                manufactured with no specific patient in mind, but that 
                are appropriately sized, adapted, modified, and 
                configured (with the required tools and equipment) to a 
                specific patient in accordance with a prescription, and 
                which no other patient would be able to use, as well as 
                all services and supplies that are medically necessary 
                for the effective use of the orthotic device and 
                instructing the patient in the use of the device. 
                Custom-fitted high devices may be furnished only by an 
                appropriately credentialed (certified or licensed) 
                practitioner and accredited supplier in Orthotics or 
                Prosthetics. Such devices and related services are 
                represented by the existing set of L-codes under the 
                Healthcare Common Procedure Coding System describing 
                this care listed on the date of enactment of this 
                section in Centers for Medicare & Medicaid Services 
                Transmittal 656.
        For purposes of subparagraphs (A) and (B), Centers for Medicare 
        & Medicaid Services Transmittal 656, upon modification or 
        reissuance by the Centers for Medicare & Medicaid Services to 
        reflect new code additions and coding changes for prosthetics 
        and custom orthotics, shall be the version of the Transmittal 
        used for purposes of such subparagraphs.
            ``(3) Financial requirements.--The term `financial 
        requirements' includes deductibles, coinsurance, co-payments, 
        other cost sharing, and limitations on the total amount that 
        may be paid by a participant or beneficiary with respect to 
        benefits under the plan or health insurance coverage and also 
        includes the application of annual and lifetime limits.
            ``(4) Treatment limitations.--The term `treatment 
        limitations' includes limits on the frequency of treatment, 
        number of visits, days of coverage, or other similar limits on 
        the scope or duration of treatment.''.
    (c) Effective Date.--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 the date of the enactment of this Act.

SEC. 4. FEDERAL ADMINISTRATIVE RESPONSIBILITIES.

    (a) Assistance to Enrollees.--The Secretary of Labor, in 
consultation with the Secretary of Health and Human Services, shall 
provide assistance to enrollees under plans or coverage to which the 
amendment made by section 3 apply with any questions or problems with 
respect to compliance with the requirements of such amendment.
    (b) Audits.--The Secretary of Labor, in consultation with the 
Secretary of Health and Human Services, shall provide for the conduct 
of random audits of group health plans (and health insurance coverage 
offered in connection with such plans) to ensure that such plans (or 
coverage) are in compliance with the amendments made by section (3).
    (c) GAO Study.--
            (1) Study.--The Comptroller General of the United States 
        shall conduct a study that evaluates the effect of the 
        implementation of the amendments made by this Act on the cost 
        of the health insurance coverage, on access to health insurance 
        coverage (including the availability of in-network providers), 
        on the quality of health care, on benefits and coverage for 
        prosthetics and custom orthotics on any additional cost or 
        savings to group health plans, on State prosthetics and custom 
        orthotics benefit laws, on the business community and the 
        Federal Government, and on other issues as determined 
        appropriate by the Comptroller General.
            (2) Report.--Not later than 2 years after the date of the 
        enactment of this Act, the Comptroller General of the United 
        States shall prepare and submit to the appropriate committee of 
        Congress a report containing the results of the study conducted 
        under paragraph (1).
    (d) Regulations.--Not later than 1 year after the date of the 
enactment of this Act, the Secretary of Labor, in consultation with the 
Secretary of Health and Human Services, shall promulgate final 
regulations to carry out this Act and the amendments made by this Act.
                                 <all>