[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 688 Introduced in Senate (IS)]

111th CONGRESS
  1st Session
                                 S. 688

 To require that health plans provide coverage for a minimum hospital 
stay for mastectomies, lumpectomies, and lymph node dissection for the 
  treatment of breast cancer and coverage for secondary consultations.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 24, 2009

Ms. Snowe (for herself, Ms. Landrieu, Mr. Whitehouse, Mr. Bingaman, Mr. 
   Harkin, Ms. Klobuchar, Mr. Cochran, Mrs. Boxer, Mr. Schumer, Mr. 
 Menendez, Mr. Durbin, and Mrs. Murray) introduced the following bill; 
     which was read twice and referred to the Committee on Health, 
                     Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
 To require that health plans provide coverage for a minimum hospital 
stay for mastectomies, lumpectomies, and lymph node dissection for the 
  treatment of breast cancer and coverage for secondary consultations.

    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 ``Breast Cancer Patient Protection Act 
of 2009''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) According to the American Cancer Society, excluding 
        cancers of the skin, breast cancer is the most frequently 
        diagnosed cancer in women.
            (2) According to the American Cancer Society, an estimated 
        40,480 women and 450 men died from breast cancer in 2008.
            (3) According to the American Cancer Society, in 2008 an 
        estimated 182,460 new cases of invasive breast cancer were 
        diagnosed in women, and an estimated 1,990 invasive breast 
        cancer cases were diagnosed in men; and in addition, an 
        estimated 67,770 new cases of in situ breast cancer occurred in 
        women in 2008, and of these, approximately 85 percent were 
        ductal carcinoma in situ.
            (4) According to the American Cancer Society, most breast 
        cancer patients undergo some type of surgical treatment, which 
        may involve lumpectomy (surgical removal of the tumor with 
        clear margins) or mastectomy (surgical removal of the breast) 
        with removal of some of the axillary (underarm) lymph nodes.
            (5) The offering and operation of health plans affect 
        commerce among the States.
            (6) Health care providers located in a State serve patients 
        who reside in the State and patients who reside in other 
        States.
            (7) In order to provide for uniform treatment of health 
        care providers and patients among the States, it is necessary 
        to cover health plans operating in one State as well as health 
        plans operating among the several States.
            (8) Research has indicated that treatment for breast cancer 
        varies according to type of insurance coverage and State of 
        residence.
            (9) Currently, 20 States mandate minimum inpatient coverage 
        after a patient undergoes a mastectomy.
            (10) Breast cancer patients have reported adverse outcomes, 
        including infection and uncontrolled pain, resulting from 
        premature hospital discharge following breast cancer surgery.

SEC. 3. 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 (29 U.S.C. 1185 et 
seq.) is amended by adding at the end the following:

``SEC. 715. REQUIRED COVERAGE FOR MINIMUM HOSPITAL STAY FOR 
              MASTECTOMIES, LUMPECTOMIES, AND LYMPH NODE DISSECTIONS 
              FOR THE TREATMENT OF BREAST CANCER AND COVERAGE FOR 
              SECONDARY CONSULTATIONS.

    ``(a) Inpatient Care.--
            ``(1) In general.--A group health plan, and a health 
        insurance issuer providing health insurance coverage in 
        connection with a group health plan, that provides medical and 
        surgical benefits shall ensure that inpatient (and in the case 
        of a lumpectomy, outpatient) coverage and radiation therapy is 
        provided for breast cancer treatment. Such plan or coverage may 
        not--
                    ``(A) insofar as the attending physician, in 
                consultation with the patient, determines it to be 
                medically necessary--
                            ``(i) restrict benefits for any hospital 
                        length of stay in connection with a mastectomy 
                        or breast conserving surgery (such as a 
                        lumpectomy) for the treatment of breast cancer 
                        to less than 48 hours; or
                            ``(ii) restrict benefits for any hospital 
                        length of stay in connection with a lymph node 
                        dissection for the treatment of breast cancer 
                        to less than 24 hours; or
                    ``(B) require that a provider obtain authorization 
                from the plan or the issuer for prescribing any length 
                of stay required under this paragraph.
            ``(2) Exception.--Nothing in this section shall be 
        construed as requiring the provision of inpatient coverage if 
        the attending physician, in consultation with the patient, 
        determines that either a shorter period of hospital stay, or 
        outpatient treatment, is medically appropriate.
    ``(b) Prohibition on Certain Modifications.--In implementing the 
requirements of this section, a group health plan, and a health 
insurance issuer providing health insurance coverage in connection with 
a group health plan, may not modify the terms and conditions of 
coverage based on the determination by a participant or beneficiary to 
request less than the minimum coverage required under subsection (a).
    ``(c) Notice.--A group health plan, and a health insurance issuer 
providing health insurance coverage in connection with a group health 
plan shall provide notice to each participant and beneficiary under 
such plan regarding the coverage required by this section in accordance 
with regulations promulgated by the Secretary. Such notice shall be in 
writing and prominently positioned in the summary of the plan made 
available or distributed by the plan or issuer and shall be 
transmitted--
            ``(1) in the next mailing made by the plan or issuer to the 
        participant or beneficiary; or
            ``(2) as part of any yearly informational packet sent to 
        the participant or beneficiary;
whichever is earlier.
    ``(d) Secondary Consultations.--
            ``(1) In general.--A group health plan, and a health 
        insurance issuer providing health insurance coverage in 
        connection with a group health plan, that provides coverage 
        with respect to medical and surgical services provided in 
        relation to the diagnosis and treatment of cancer shall ensure 
        that coverage is provided for secondary consultations, on terms 
        and conditions that are no more restrictive than those 
        applicable to the initial consultations, by specialists in the 
        appropriate medical fields (including pathology, radiology, and 
        oncology) to confirm or refute such diagnosis. Such plan or 
        issuer shall ensure that coverage is provided for such 
        secondary consultation whether such consultation is based on a 
        positive or negative initial diagnosis. In any case in which 
        the attending physician certifies in writing that services 
        necessary for such a secondary consultation are not 
        sufficiently available from specialists operating under the 
        plan with respect to whose services coverage is otherwise 
        provided under such plan or by such issuer, such plan or issuer 
        shall ensure that coverage is provided with respect to the 
        services necessary for the secondary consultation with any 
        other specialist selected by the attending physician for such 
        purpose at no additional cost to the individual beyond that 
        which the individual would have paid if the specialist was 
        participating in the network of the plan.
            ``(2) Exception.--Nothing in paragraph (1) shall be 
        construed as requiring the provision of secondary consultations 
        where the patient determines not to seek such a consultation.
    ``(e) Prohibition on Penalties or Incentives.--A group health plan, 
and a health insurance issuer providing health insurance coverage in 
connection with a group health plan, may not--
            ``(1) penalize or otherwise reduce or limit the 
        reimbursement of a provider or specialist because the provider 
        or specialist provided care to a participant or beneficiary in 
        accordance with this section;
            ``(2) provide financial or other incentives to a physician 
        or specialist to induce the physician or specialist to keep the 
        length of inpatient stays of patients following a mastectomy, 
        lumpectomy, or a lymph node dissection for the treatment of 
        breast cancer below certain limits or to limit referrals for 
        secondary consultations; or
            ``(3) provide financial or other incentives to a physician 
        or specialist to induce the physician or specialist to refrain 
        from referring a participant or beneficiary for a secondary 
        consultation that would otherwise be covered by the plan or 
        coverage involved under subsection (d).''.
    (b) 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. Required coverage for minimum hospital stay for 
                            mastectomies, lumpectomies, and lymph node 
                            dissections for the treatment of breast 
                            cancer and coverage for secondary 
                            consultations.''.
    (c) Effective Dates.--
            (1) In general.--The amendments made by this section shall 
        apply with respect to plan years beginning on or after the date 
        that is 90 days after the date of enactment of this Act.
            (2) Special rule for collective bargaining agreements.--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 enactment of this Act, the amendments made by this 
        section shall not apply to plan years beginning before 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 enactment of this Act). For 
        purposes of this paragraph, 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.

SEC. 4. 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 (42 U.S.C. 300gg-4 et seq.) is amended by adding at 
the end the following:

``SEC. 2708. REQUIRED COVERAGE FOR MINIMUM HOSPITAL STAY FOR 
              MASTECTOMIES, LUMPECTOMIES, AND LYMPH NODE DISSECTIONS 
              FOR THE TREATMENT OF BREAST CANCER AND COVERAGE FOR 
              SECONDARY CONSULTATIONS.

    ``(a) Inpatient Care.--
            ``(1) In general.--A group health plan, and a health 
        insurance issuer providing health insurance coverage in 
        connection with a group health plan, that provides medical and 
        surgical benefits shall ensure that inpatient (and in the case 
        of a lumpectomy, outpatient) coverage and radiation therapy is 
        provided for breast cancer treatment. Such plan or coverage may 
        not--
                    ``(A) insofar as the attending physician, in 
                consultation with the patient, determines it to be 
                medically necessary--
                            ``(i) restrict benefits for any hospital 
                        length of stay in connection with a mastectomy 
                        or breast conserving surgery (such as a 
                        lumpectomy) for the treatment of breast cancer 
                        to less than 48 hours; or
                            ``(ii) restrict benefits for any hospital 
                        length of stay in connection with a lymph node 
                        dissection for the treatment of breast cancer 
                        to less than 24 hours; or
                    ``(B) require that a provider obtain authorization 
                from the plan or the issuer for prescribing any length 
                of stay required under this paragraph.
            ``(2) Exception.--Nothing in this section shall be 
        construed as requiring the provision of inpatient coverage if 
        the attending physician, in consultation with the patient, 
        determines that either a shorter period of hospital stay, or 
        outpatient treatment, is medically appropriate.
    ``(b) Prohibition on Certain Modifications.--In implementing the 
requirements of this section, a group health plan, and a health 
insurance issuer providing health insurance coverage in connection with 
a group health plan, may not modify the terms and conditions of 
coverage based on the determination by a participant or beneficiary to 
request less than the minimum coverage required under subsection (a).
    ``(c) Notice.--A group health plan, and a health insurance issuer 
providing health insurance coverage in connection with a group health 
plan shall provide notice to each participant and beneficiary under 
such plan regarding the coverage required by this section in accordance 
with regulations promulgated by the Secretary. Such notice shall be in 
writing and prominently positioned in the summary of the plan made 
available or distributed by the plan or issuer and shall be 
transmitted--
            ``(1) in the next mailing made by the plan or issuer to the 
        participant or beneficiary; or
            ``(2) as part of any yearly informational packet sent to 
        the participant or beneficiary;
whichever is earlier.
    ``(d) Secondary Consultations.--
            ``(1) In general.--A group health plan, and a health 
        insurance issuer providing health insurance coverage in 
        connection with a group health plan, that provides coverage 
        with respect to medical and surgical services provided in 
        relation to the diagnosis and treatment of cancer shall ensure 
        that coverage is provided for secondary consultations, on terms 
        and conditions that are no more restrictive than those 
        applicable to the initial consultations, by specialists in the 
        appropriate medical fields (including pathology, radiology, and 
        oncology) to confirm or refute such diagnosis. Such plan or 
        issuer shall ensure that coverage is provided for such 
        secondary consultation whether such consultation is based on a 
        positive or negative initial diagnosis. In any case in which 
        the attending physician certifies in writing that services 
        necessary for such a secondary consultation are not 
        sufficiently available from specialists operating under the 
        plan with respect to whose services coverage is otherwise 
        provided under such plan or by such issuer, such plan or issuer 
        shall ensure that coverage is provided with respect to the 
        services necessary for the secondary consultation with any 
        other specialist selected by the attending physician for such 
        purpose at no additional cost to the individual beyond that 
        which the individual would have paid if the specialist was 
        participating in the network of the plan.
            ``(2) Exception.--Nothing in paragraph (1) shall be 
        construed as requiring the provision of secondary consultations 
        where the patient determines not to seek such a consultation.
    ``(e) Prohibition on Penalties or Incentives.--A group health plan, 
and a health insurance issuer providing health insurance coverage in 
connection with a group health plan, may not--
            ``(1) penalize or otherwise reduce or limit the 
        reimbursement of a provider or specialist because the provider 
        or specialist provided care to a participant or beneficiary in 
        accordance with this section;
            ``(2) provide financial or other incentives to a physician 
        or specialist to induce the physician or specialist to keep the 
        length of inpatient stays of patients following a mastectomy, 
        lumpectomy, or a lymph node dissection for the treatment of 
        breast cancer below certain limits or to limit referrals for 
        secondary consultations; or
            ``(3) provide financial or other incentives to a physician 
        or specialist to induce the physician or specialist to refrain 
        from referring a participant or beneficiary for a secondary 
        consultation that would otherwise be covered by the plan or 
        coverage involved under subsection (d).''.
    (b) Effective Dates.--
            (1) In general.--The amendments made by this section shall 
        apply to group health plans for plan years beginning on or 
        after 90 days after the date of enactment of this Act.
            (2) Special rule for collective bargaining agreements.--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 enactment of this Act, the amendments made by this 
        section shall not apply to plan years beginning before 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 enactment of this Act). For 
        purposes of this paragraph, 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.

SEC. 5. AMENDMENT TO THE PUBLIC HEALTH SERVICE ACT RELATING TO THE 
              INDIVIDUAL MARKET.

    (a) In General.--Subpart 2 of part B of title XXVII of the Public 
Health Service Act (42 U.S.C. 300gg-51 et seq.) is amended by adding at 
the end the following new section:

``SEC. 2754. REQUIRED COVERAGE FOR MINIMUM HOSPITAL STAY FOR 
              MASTECTOMIES, LUMPECTOMIES, AND LYMPH NODE DISSECTIONS 
              FOR THE TREATMENT OF BREAST CANCER AND SECONDARY 
              CONSULTATIONS.

    ``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 they 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.''.
    (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 
the date of enactment of this Act.

SEC. 6. AMENDMENTS TO THE INTERNAL REVENUE CODE OF 1986.

    (a) In General.--Subchapter B of chapter 100 of the Internal 
Revenue Code of 1986 is amended--
            (1) in the table of sections, by inserting after the item 
        relating to section 9813 the following:

``Sec. 9814. Required coverage for minimum hospital stay for 
                            mastectomies, lumpectomies, and lymph node 
                            dissections for the treatment of breast 
                            cancer and coverage for secondary 
                            consultations.'';
    and
            (2) by inserting after section 9813 the following:

``SEC. 9814. REQUIRED COVERAGE FOR MINIMUM HOSPITAL STAY FOR 
              MASTECTOMIES, LUMPECTOMIES, AND LYMPH NODE DISSECTIONS 
              FOR THE TREATMENT OF BREAST CANCER AND COVERAGE FOR 
              SECONDARY CONSULTATIONS.

    ``(a) Inpatient Care.--
            ``(1) In general.--A group health plan that provides 
        medical and surgical benefits shall ensure that inpatient (and 
        in the case of a lumpectomy, outpatient) coverage and radiation 
        therapy is provided for breast cancer treatment. Such plan may 
        not--
                    ``(A) insofar as the attending physician, in 
                consultation with the patient, determines it to be 
                medically necessary--
                            ``(i) restrict benefits for any hospital 
                        length of stay in connection with a mastectomy 
                        or breast conserving surgery (such as a 
                        lumpectomy) for the treatment of breast cancer 
                        to less than 48 hours; or
                            ``(ii) restrict benefits for any hospital 
                        length of stay in connection with a lymph node 
                        dissection for the treatment of breast cancer 
                        to less than 24 hours; or
                    ``(B) require that a provider obtain authorization 
                from the plan for prescribing any length of stay 
                required under this paragraph.
            ``(2) Exception.--Nothing in this section shall be 
        construed as requiring the provision of inpatient coverage if 
        the attending physician, in consultation with the patient, 
        determines that either a shorter period of hospital stay, or 
        outpatient treatment, is medically appropriate.
    ``(b) Prohibition on Certain Modifications.--In implementing the 
requirements of this section, a group health plan may not modify the 
terms and conditions of coverage based on the determination by a 
participant or beneficiary to request less than the minimum coverage 
required under subsection (a).
    ``(c) Notice.--A group health plan shall provide notice to each 
participant and beneficiary under such plan regarding the coverage 
required by this section in accordance with regulations promulgated by 
the Secretary. Such notice shall be in writing and prominently 
positioned in the summary of the plan made available or distributed by 
the plan and shall be transmitted--
            ``(1) in the next mailing made by the plan to the 
        participant or beneficiary; or
            ``(2) as part of any yearly informational packet sent to 
        the participant or beneficiary;
whichever is earlier.
    ``(d) Secondary Consultations.--
            ``(1) In general.--A group health plan that provides 
        coverage with respect to medical and surgical services provided 
        in relation to the diagnosis and treatment of cancer shall 
        ensure that coverage is provided for secondary consultations, 
        on terms and conditions that are no more restrictive than those 
        applicable to the initial consultations, by specialists in the 
        appropriate medical fields (including pathology, radiology, and 
        oncology) to confirm or refute such diagnosis. Such plan or 
        issuer shall ensure that coverage is provided for such 
        secondary consultation whether such consultation is based on a 
        positive or negative initial diagnosis. In any case in which 
        the attending physician certifies in writing that services 
        necessary for such a secondary consultation are not 
        sufficiently available from specialists operating under the 
        plan with respect to whose services coverage is otherwise 
        provided under such plan or by such issuer, such plan or issuer 
        shall ensure that coverage is provided with respect to the 
        services necessary for the secondary consultation with any 
        other specialist selected by the attending physician for such 
        purpose at no additional cost to the individual beyond that 
        which the individual would have paid if the specialist was 
        participating in the network of the plan.
            ``(2) Exception.--Nothing in paragraph (1) shall be 
        construed as requiring the provision of secondary consultations 
        where the patient determines not to seek such a consultation.
    ``(e) Prohibition on Penalties.--A group health plan may not--
            ``(1) penalize or otherwise reduce or limit the 
        reimbursement of a provider or specialist because the provider 
        or specialist provided care to a participant or beneficiary in 
        accordance with this section;
            ``(2) provide financial or other incentives to a physician 
        or specialist to induce the physician or specialist to keep the 
        length of inpatient stays of patients following a mastectomy, 
        lumpectomy, or a lymph node dissection for the treatment of 
        breast cancer below certain limits or to limit referrals for 
        secondary consultations; or
            ``(3) provide financial or other incentives to a physician 
        or specialist to induce the physician or specialist to refrain 
        from referring a participant or beneficiary for a secondary 
        consultation that would otherwise be covered by the plan 
        involved under subsection (d).''.
    (b) Effective Dates.--
            (1) In general.--The amendments made by this section shall 
        apply with respect to plan years beginning on or after the date 
        of enactment of this Act.
            (2) Special rule for collective bargaining agreements.--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 enactment of this Act, the amendments made by this 
        section shall not apply to plan years beginning before 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 enactment of this Act). For 
        purposes of this paragraph, 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.

SEC. 7. OPPORTUNITY FOR INDEPENDENT, EXTERNAL THIRD PARTY REVIEWS OF 
              CERTAIN NONRENEWALS AND DISCONTINUATIONS, INCLUDING 
              RESCISSIONS, OF INDIVIDUAL HEALTH INSURANCE COVERAGE.

    (a) Clarification Regarding Application of Guaranteed Renewability 
of Individual Health Insurance Coverage.--Section 2742 of the Public 
Health Service Act (42 U.S.C. 300gg-42) is amended--
            (1) in its heading, by inserting ``, continuation in force, 
        including prohibition of rescission,'' after ``guaranteed 
        renewability'';
            (2) in subsection (a), by inserting ``, including without 
        rescission,'' after ``continue in force''; and
            (3) in subsection (b)(2), by inserting before the period at 
        the end the following: ``, including intentional concealment of 
        material facts regarding a health condition related to the 
        condition for which coverage is being claimed''.
    (b) Opportunity for Independent, External Third Party Review in 
Certain Cases.--Subpart 1 of part B of title XXVII of the Public Health 
Service Act is amended by adding at the end the following new section:

``SEC. 2746. OPPORTUNITY FOR INDEPENDENT, EXTERNAL THIRD PARTY REVIEW 
              IN CERTAIN CASES.

    ``(a) Notice and Review Right.--If a health insurance issuer 
determines to nonrenew or not continue in force, including rescind, 
health insurance coverage for an individual in the individual market on 
the basis described in section 2742(b)(2) before such nonrenewal, 
discontinuation, or rescission, may take effect the issuer shall 
provide the individual with notice of such proposed nonrenewal, 
discontinuation, or rescission and an opportunity for a review of such 
determination by an independent, external third party under procedures 
specified by the Secretary.
    ``(b) Independent Determination.--If the individual requests such 
review by an independent, external third party of a nonrenewal, 
discontinuation, or rescission of health insurance coverage, the 
coverage shall remain in effect until such third party determines that 
the coverage may be nonrenewed, discontinued, or rescinded under 
section 2742(b)(2).''.
    (c) Effective Date.--The amendments made by this section shall 
apply after the date of the enactment of this Act with respect to 
health insurance coverage issued before, on, or after such date.
                                 <all>