[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1322 Introduced in House (IH)]

112th CONGRESS
  1st Session
                                H. R. 1322

To amend title I of the Employee Retirement Income Security Act of 1974 
  to provide protection for company-provided retiree health benefits.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             April 1, 2011

 Mr. Tierney (for himself, Mr. George Miller of California, Mr. Jones, 
 and Mr. Andrews) introduced the following bill; which was referred to 
              the Committee on Education and the Workforce

_______________________________________________________________________

                                 A BILL


 
To amend title I of the Employee Retirement Income Security Act of 1974 
  to provide protection for company-provided retiree health benefits.

    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 ``Earned Retiree Healthcare Benefits 
Protection Act of 2011''.

SEC. 2. FINDINGS AND PURPOSES.

    (a) Findings.--The Congress finds the following:
            (1) Retired participants of group health plans regulated by 
        the Employee Retirement Income Security Act of 1974 (ERISA) 
        have been severely harmed by the virtually unchecked practices 
        of sponsors of such plans involving the post-retirement 
        cancellation or reduction of earned health benefits contrary to 
        assurances retirees received prior to retirement that such 
        benefits would be with them for life.
            (2) Such widespread post-retirement reductions in retiree 
        health benefits has led to a crisis in retiree health care in 
        which retirees--
                    (A) have been unable to substitute individual 
                coverage for the group coverage they lost, or, in order 
                to obtain individual coverage, have jeopardized their 
                economic security in retirement;
                    (B) because of preexisting medical conditions 
                cannot obtain substitute coverage that they can afford 
                without depleting their life savings or have been 
                unable to obtain adequate medical care or medical care 
                they had relied on to deal with serious illness;
                    (C) have sustained catastrophic illnesses or 
                injuries or otherwise experienced a marked 
                deterioration in their medical conditions or health as 
                a result of post-retirement changes to their medical 
                benefits;
                    (D) have been transferred indiscriminately into 
                improperly or inadequately managed health maintenance 
                organizations or other managed care entities, resulting 
                in the worsening rather than improvement of prior 
                medical conditions; and
                    (E) in many instances, have failed to obtain 
                adequate relief in the courts due to highly restrictive 
                judicial interpretations which are inconsistent with 
                ERISA's underlying protective purposes.
            (3) The crisis in retiree healthcare generated by the plan 
        sponsor practice of post-retirement cancellations or reductions 
        of previously promised earned retiree health benefits has led 
        to a widespread loss of confidence in the integrity of ERISA-
        regulated group health plans and the ability of ERISA itself to 
        adequately protect retiree health benefits.
            (4) A strong and dependable private sector retiree health 
        system is a necessary component to the essential health of our 
        Nation's senior citizens.
    (b) Purposes.--
            (1) In general.--The purposes of this Act are to ensure 
        that the reasonable health benefit expectations of retirees 
        from ERISA-regulated group health plans are fulfilled, to 
        minimize the incidence of prolonged legal disputes arising out 
        of the post-retirement cancellation or reduction of earned 
        retiree health benefits from such plans, and to prevent further 
        adverse effects on retiree health arising from such post-
        retirement changes.
            (2) Future safeguards and enforceable obligations.--To 
        carry out the purposes described in paragraph (1):
                    (A) The provisions of this Act safeguard retired 
                participants of group health plans subject to ERISA 
                from loss or reduction of their health benefits from 
                such plans by barring plan sponsors from canceling or 
                reducing such benefits after the dates such 
                participants retire and when they no longer are able to 
                absorb such losses or reductions without experiencing 
                adverse effects on their health or finances.
                    (B) The provisions of this Act also establish an 
                enforceable obligation on the part of sponsors of such 
                group health plans to restore health benefits 
                previously taken away from retired participants of such 
                plans to the extent such benefits were cancelled or 
                altered after the dates such participants retired. The 
                obligation is limited to restoring healthcare benefits 
                only back to specified levels, and the obligation does 
                not apply if the plan sponsor would sustain substantial 
                business hardship by restoring such benefits.

SEC. 3. RETIREE HEALTH BENEFIT PROTECTIONS IN GROUP HEALTH PLANS.

    (a) In General.--Subtitle B of title I of the Employee Retirement 
Income Security Act of 1974 is amended by adding at the end the 
following new part:

         ``PART 8--EMERGENCY RETIREE HEALTH BENEFIT PROTECTIONS

``SEC. 801. PROHIBITION AGAINST POST-RETIREMENT REDUCTIONS OF RETIREE 
              HEALTH BENEFITS BY GROUP HEALTH PLANS.

    ``(a) In General.--Notwithstanding that a group health plan 
described in subsection (b) may contain a provision reserving the 
general power to amend or terminate the plan or a provision 
specifically authorizing the plan to make post-retirement reductions in 
retiree health benefits, the benefits provided to a retired participant 
or his or her beneficiary under the terms of the plan may not be 
reduced, whether through amendment or otherwise, if such reduction of 
benefits occurs after the date the participant has retired for purposes 
of the plan and reduces benefits that were provided to the participant, 
or his or her beneficiary, as of the date the participant retired. Any 
group health plan provision which is purported to authorize the 
reduction of benefits in a manner inconsistent with the preceding 
sentence shall be void as against public policy.
    ``(b) Group Health Plan.--For purposes of this Act, the term `group 
health plan' has the same meaning as in section 607(1).
    ``(c) Prohibited Reduction of Benefits.--For purposes of this part, 
any reference to a reduction of benefits shall be construed to be a 
reference to any amendment to a group health plan, or to any other 
action, which has the effect of--
            ``(1) canceling, decreasing, or limiting the amount, type, 
        or form of any benefit or option provided prior to the 
        amendment or action;
            ``(2) imposing or increasing out-of-pocket costs that a 
        retired participant, or his or her beneficiary, must pay in 
        order for benefits that were provided under the plan to the 
        participant or beneficiary prior to the amendment or action to 
        be provided to the participant or beneficiary after the 
        amendment or action; or
            ``(3) modifying the manner by which medical services are 
        delivered under the plan so that after the amendment or action 
        a retired participant, or his or her beneficiary, has less 
        ready access to the delivery of any such medical services than 
        the participant or beneficiary had prior to the amendment or 
        action.
    ``(d) Treatment of Plan Termination.--
            ``(1) In general.--Subject to paragraph (2), a termination 
        of a group health plan shall be treated as a reduction in 
        benefits prohibited under subsection (a) if, after the 
        termination, the plan sponsor of the terminated plan fails to 
        continue to provide to the participants who retired prior to 
        the termination and to their beneficiaries the same retiree 
        health benefits that were provided prior to the termination.
            ``(2) Waiver.--Paragraph (1) shall not apply in the case of 
        the termination of a group health plan if the Secretary issues 
        a waiver under this paragraph in connection with such 
        termination. The Secretary shall issue such a waiver if and 
        only if the plan sponsor demonstrates to the satisfaction of 
        the Secretary, in accordance with regulations prescribed by the 
        Secretary, that such plan sponsor will be unable to continue in 
        business unless such a waiver is issued.

``SEC. 802. ADOPTION BY GROUP HEALTH PLANS OF PROVISION BARRING POST-
              RETIREMENT REDUCTIONS IN RETIREE HEALTH BENEFITS.

    ``Each group health plan which provides, as of the date of a 
participant's retirement under the plan, benefits after such date with 
respect to such participant or his or her beneficiaries shall contain a 
provision which expressly bars any reduction in such benefits after 
such date, either under the terms of the plan or by any fiduciary of 
the plan.

``SEC. 803. RESTORATION BY GROUP HEALTH PLANS OF BENEFITS REDUCED AFTER 
              RETIREMENT.

    ``(a) In General.--The plan sponsor of each group health plan shall 
provide, in accordance with this section, benefit restoration under 
this section to each retired participant that meets the following 
requirements:
            ``(1) The retired participant is entitled to benefit 
        coverage under the plan as of the date of the enactment of the 
        Earned Retiree Healthcare Benefits Protection Act of 2011.
            ``(2) The participant retired under the plan before the 
        date of the enactment of such Act, and a reduction in benefits, 
        with respect to any benefit or option provided to the retired 
        participant under the plan as of the date the participant 
        retired, took effect after the participant's date of retirement 
        and before the date of the enactment of such Act.
            ``(3) The retired participant has elected to restore 
        benefits under the plan within the restoration period 
        prescribed pursuant to subsection (b) and in accordance with 
        such procedures as may be established under the plan pursuant 
        to regulations of the Secretary.
    ``(b) Restoration Period.--For purposes of this section, the term 
`restoration period' means a period which shall be prescribed by the 
Secretary and which--
            ``(1) begins not later than 1 year after the date of the 
        enactment of the Earned Retiree Healthcare Benefits Protection 
        Act of 2011;
            ``(2) ends before the end of the 2-year period beginning 
        with such date, or such longer period as may result from a 
        suspension of such 2-year period by the Secretary pursuant to 
        section 804(g); and
            ``(3) is of no less than 60 days duration.
    ``(c) Applicable Standards for Restoration of Benefits.--
            ``(1) In general.--For purposes of this section, reduced 
        benefits shall be deemed restored under this section--
                    ``(A) in the case of a participant who retired 
                under the plan before the plan year beginning with or 
                during 1991, if the benefits which were subjected to 
                reduction are restored to the level of such benefits 
                which was in effect for the plan year beginning with or 
                during 1991, and
                    ``(B) in the case of a participant who retired 
                under the plan after the plan year beginning with or 
                during 1990 and before the date of the enactment of the 
                Earned Retiree Healthcare Benefits Protection Act of 
                2011, if the benefits which were subjected to reduction 
                are restored to the level of such benefits which was in 
                effect immediately prior to the reduction.
            ``(2) Level of benefits.--For purposes of paragraph (1), 
        restoration of benefits to a level required under paragraph (1) 
        occurs if--
                    ``(A) any cancellation, decrease, or limitation 
                with respect to the amount, type, or form of any 
                benefit or option which resulted in the reduction in 
                benefits is rescinded or lessened so as to result in 
                the amount, type, and form of benefits in effect for 
                the plan year beginning with or during 1991 (in the 
                case of a participant described in paragraph (1)(A)) or 
                as of immediately prior to the reduction (in the case 
                of a participant described in paragraph (1)(B));
                    ``(B) any imposition or increase in out-of-pocket 
                costs that the participant, or his or her beneficiary, 
                must pay which resulted in the reduction in benefits is 
                rescinded or lessened so as to result in the level of 
                out-of-pocket costs in effect for the plan year 
                beginning with or during 1991 (in the case of a 
                participant described in paragraph (1)(A)) or as of 
                immediately prior to the reduction (in the case of a 
                participant described in paragraph (1)(B)); and
                    ``(C) any modification in the manner by which 
                medical services are delivered under the plan which 
                resulted in the reduction in benefits is rescinded or 
                amended so as to result in a manner by which medical 
                services are delivered under the plan which is 
                substantially equivalent to the manner by which medical 
                services are delivered in effect for the plan year 
                beginning with or during 1991 (in the case of a 
                participant described in paragraph (1)(A)) or as of 
                immediately prior to the reduction (in the case of a 
                participant described in paragraph (1)(B)).
    ``(d) Exception for Certain Plans.--In accordance with regulations 
prescribed by the Secretary, in the case of any group health plan which 
has less than 100 participants as of the date of the enactment of the 
Earned Retiree Healthcare Benefits Protection Act of 2011, subsection 
(a) shall apply to such plan only if, at any time during the period 
described in subsection (b)(2) (including any extension thereof), such 
plan has more than 100 participants.
    ``(e) Notice Requirements Concerning Restoration of Benefits.--In 
accordance with such regulations as may be prescribed by the Secretary, 
the plan administrator of each group health plan subject to the 
requirements of subsection (a) shall, within 30 days prior to the 
commencement of the plan's restoration period, provide written notice 
to each retired participant of the plan who meets the requirements of 
subsection (a) of the following:
            ``(1) A description of all benefits the retired participant 
        is entitled to have restored.
            ``(2) The administrative procedure established under the 
        plan which may be used to submit a claim for the restoration of 
        any benefits.
            ``(3) An itemization of the value of each benefit the 
        retired participant is entitled to have restored, as determined 
        in accordance with the regulations of the Secretary, and the 
        total value of all such benefits.
            ``(4) A description of any post-retirement increases in 
        retiree health benefits the retired participant received which 
        the plan sponsor could rescind if the retired participant 
        asserts a claim for the restoration of benefits.
            ``(5) An itemization of the value of each retiree health 
        benefit that the plan sponsor could rescind, as determined in 
        accordance with the regulations of the Secretary, and the total 
        value of all such benefits.
            ``(6) If the plan sponsor has filed an application for a 
        substantial business hardship exemption under section 804, the 
        date on which such application was filed, the date on which 
        notice of such application was given to retired participants 
        entitled to submit a claim for the restoration of benefits, and 
        the status of such application as of the date of the notice 
        sent pursuant to this subsection.
            ``(7) Such other information in such form and detail as may 
        be prescribed by the Secretary to carry out the purposes of 
        this part.
    ``(f) Deadline for Restoration of Benefits.--All benefits required 
to be restored under this section shall be restored before the end of 
the 2-year period beginning with the date of the enactment of the 
Earned Retiree Healthcare Benefits Protection Act of 2011, subject to 
any suspension of such period under section 804(g).

``SEC. 804. EXEMPTION FROM RESTORATION OF BENEFITS REQUIREMENTS.

    ``(a) Application for Exemption.--Any plan sponsor of a group 
health plan that would sustain substantial business hardship if 
required to fulfill, in whole or in part, the restoration of benefits 
requirements contained in section 803, may file an application for an 
exemption with the Secretary from any or all of such requirements.
    ``(b) Authority for Waiver or Variance.--In response to an 
application filed by a plan sponsor pursuant to subsection (a), the 
Secretary may waive or vary the requirements of section 803 with 
respect to any or all of such requirements, including postponing for 
reasonable periods of time the obligation of the plan sponsor to 
restore reduced benefits, if the Secretary finds that compliance by the 
plan sponsor with the requirements of section 803 would--
            ``(1) be adverse to the interests of plan participants in 
        the aggregate;
            ``(2) not be administratively feasible; and
            ``(3) cause substantial business hardship to the plan 
        sponsor.
    ``(c) Factors Taken Into Account.--For purposes of this section, 
the factors to be taken into account in determining substantial 
business hardship shall include (but shall not be limited to) whether--
            ``(1) the plan sponsor is operating at an economic loss;
            ``(2) compliance with the restoration of benefits 
        requirements would necessitate substantial future reductions in 
        health benefits provided to participants under the plan or 
        cause a substantial decline in employment with the plan 
        sponsor; and
            ``(3) it is reasonable to expect that the plan will be 
        continued only if a waiver or appropriate variance is granted.
    ``(d) Requirement of Satisfactory Evidence.--
            ``(1) In general.--The Secretary shall, before granting a 
        waiver or variance under this section, require each applicant 
        to provide evidence satisfactory to the Secretary that the 
        applicant has provided timely written notice of the filing of 
        an application for such waiver or variance to each retired 
        participant entitled to submit a claim for the restoration of 
        benefits under the applicant's plan.
            ``(2) Timeliness.--For purposes of paragraph (1), a written 
        notice shall be considered timely if it is provided not later 
        than 60 days prior to the date the plan sponsor files an 
        application for a waiver or variance under this section.
            ``(3) Information required.--The notice referred to in 
        paragraph (1) shall include information with respect to the 
        specific relief that will be sought by the plan sponsor's 
        application, the period of time for which relief is sought, and 
        such other relevant information as the Secretary may prescribe.
    ``(e) Participation in Proceedings by Retired Plan Participants.--
Each retired participant entitled to submit a claim for the restoration 
of benefits within the meaning of this section shall be provided a 
reasonable opportunity to submit comments or otherwise participate in 
any proceeding established by the Secretary to determine whether to 
grant or deny an application for a waiver or variance filed by the 
retired participant's plan sponsor.
    ``(f) Exceptions for Certain Applications.--In any case in which 
the plan sponsor of the group health plan also maintains a pension plan 
which provides pension benefits with respect to any retired participant 
entitled to submit a claim for the restoration of benefits within the 
meaning of this section, the Secretary may not grant any application 
for a waiver or variance purporting to satisfy the requirements of 
subsection (b) if the requirements of paragraph (1) or (2) of this 
subsection are met.
            ``(1) Failure to transfer excess pension assets.--The 
        requirements of this paragraph are met if--
                    ``(A) within the 5-year period preceding the date 
                of the plan sponsor's application for the waiver or 
                variance, the plan sponsor could have transferred 
                excess assets of such pension plan to a health benefits 
                account in accordance with section 420 of the Internal 
                Revenue Code of 1986 (as in effect on the date of the 
                enactment of the Tax Relief Extension Act of 1999) but 
                did not do so; and
                    ``(B) such health benefits account forms a part of 
                the group health plan with respect to which the plan 
                sponsor is submitting the application.
            ``(2) No ad hoc colas provided under well-funded pension 
        plan providing for such colas.--
                    ``(A) In general.--The requirements of this 
                paragraph are met if--
                            ``(i)(I) no employer contributions were 
                        made to such pension plan during any of the 5 
                        plan years preceding the date of the 
                        application for the waiver or variance, and
                            ``(II) despite such lack of employer 
                        contributions, the minimum funding standard 
                        under section 302 of this Act and section 412 
                        of the Internal Revenue Code of 1986 was 
                        satisfied with respect to such pension plan for 
                        each of such 5 plan years and the average 
                        funded ratio of the plan for such 5 plan years 
                        was greater than 120 percent; and
                            ``(ii)(I) the pension plan provided for ad 
                        hoc cost-of-living adjustments in benefits 
                        throughout such 5 plan years, and
                            ``(II) no such ad hoc cost-of-living 
                        adjustment in benefits was provided under such 
                        pension plan during such 5 plan years.
                    ``(B) Funded ratio.--For purposes of subparagraph 
                (A)(i)(II), the funded ratio of a pension plan for a 
                plan year is the ratio, expressed as a percentage, of--
                            ``(i) the assets of the plan as of the end 
                        of such plan year, to
                            ``(ii) the liabilities of the plan as of 
                        the end of such plan year.
    ``(g) Running of 2-Year Deadline Period Suspended.--The submission 
of an application for a waiver or variance pursuant to this section 
during the 2-year period referred to in section 803(f) shall suspend 
the running of such period. If determined appropriate by the Secretary, 
the Secretary may direct that the running of such period be resumed 
upon the final conclusion of proceedings to determine whether an 
application should be granted or denied.

``SEC. 805. EFFECT ON OTHER CLAIMS.

    ``(a) Other Claims Unaffected.--Nothing in this part shall be 
construed to alter, impair, or eliminate any claim for retiree health 
benefits based on conduct alleged to violate the terms of a group 
health plan, any provision of this Act (other than this part), or both, 
regardless of whether such conduct occurred prior to, on, or after the 
date of the enactment of the Earned Retiree Healthcare Benefits 
Protection Act of 2011.
    ``(b) Other Causes of Action Not Authorized.--Nothing contained in 
this part shall be construed to authorize any action for recovery of 
retiree health benefits unless the conduct giving rise to the claim for 
recovery is alleged to violate the provisions of this part.

``SEC. 806. REGULATIONS.

    ``The Secretary may promulgate such regulations as may be necessary 
to carry out the provisions of this part. The Secretary may promulgate 
any interim final rules as the Secretary deems are appropriate to carry 
out this part.''.
    (b) Civil Penalty.--Section 502(c) of the Employee Retirement 
Income Security Act of 1974 (29 U.S.C. 1132(c)) is amended--
            (1) by redesignating the second paragraph (10) (relating to 
        consultation between the Secretary of Labor and the Secretary 
        of Health and Human Services) as paragraph (12); and
            (2) by inserting after the first paragraph (10) the 
        following new paragraph:
    ``(11) The Secretary may assess any person a civil penalty of not 
more than $20,000 with respect to each failure by such person to meet 
the requirements of section 801, 802, or 803 with respect to each 
participant or beneficiary aggrieved by such failure.''.
    (c) Conforming Amendment.--The table of contents in section 1 of 
such Act is amended by inserting after the item relating to section 734 
the following new items:

         ``Part 8--Emergency Retiree Health Benefit Protections

``Sec. 801. Prohibition against post-retirement reductions of retiree 
                            health benefits by group health plans.
``Sec. 802. Adoption by group health plans of provision barring post-
                            retirement reductions in retiree health 
                            benefits.
``Sec. 803. Restoration by group health plans of benefits reduced after 
                            retirement.
``Sec. 804. Exemption from restoration of benefits requirements.
``Sec. 805. Effect on other claims.
``Sec. 806. Regulations.''.

SEC. 4. EFFECTIVE DATE.

    The amendments made by this Act shall take effect on the date of 
the enactment of this Act, except that section 802 of the Employee 
Retirement Income Security Act of 1974 (as added by section 3 of this 
Act) shall apply with respect to plan years beginning after 180 days 
after the date of the enactment of this Act. Compliance with the 
requirements of part 8 of subtitle B of title I of the Employee 
Retirement Income Security Act of 1974 with respect to a group health 
plan shall not be treated as a failure to comply with the terms of such 
plan.
                                 <all>