[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 3388 Introduced in Senate (IS)]

<DOC>






115th CONGRESS
  2d Session
                                S. 3388

   To amend the Health Insurance Portability and Accountability Act.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            August 23, 2018

 Mr. Tillis (for himself, Mr. Alexander, Mr. Grassley, Mrs. Ernst, Ms. 
  Murkowski, Mr. Cassidy, Mr. Wicker, Mr. Graham, Mr. Heller, and Mr. 
   Barrasso) introduced the following bill; which was read twice and 
  referred to the Committee on Health, Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL


 
   To amend the Health Insurance Portability and Accountability Act.

    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 ``Ensuring Coverage for Patients with 
Pre-Existing Conditions Act''.

SEC. 2. GUARANTEED AVAILABILITY OF COVERAGE; PROHIBITING 
              DISCRIMINATION.

    (a) In General.--Subtitle C of title I of the Health Insurance 
Portability and Accountability Act of 1996 (Public Law 104-191) is 
amended by adding at the end the following:

``SEC. 196. GUARANTEED AVAILABILITY OF COVERAGE.

    ``(a) Guaranteed Issuance of Coverage in the Individual and Group 
Market.--Subject to subsections (b) through (d), each health insurance 
issuer that offers health insurance coverage in the individual or group 
market in a State must accept every employer and individual in the 
State that applies for such coverage.
    ``(b) Enrollment.--
            ``(1) Restriction.--A health insurance issuer described in 
        subsection (a) may restrict enrollment in coverage described in 
        such subsection to open or special enrollment periods.
            ``(2) Establishment.--A health insurance issuer described 
        in subsection (a) shall, in accordance with the regulations 
        promulgated under paragraph (3), establish special enrollment 
        periods for qualifying events (under section 603 of the 
        Employee Retirement Income Security Act of 1974).
            ``(3) Regulations.--The Secretary shall promulgate 
        regulations with respect to enrollment periods under paragraphs 
        (1) and (2).
    ``(c) Special Rules for Network Plans.--
            ``(1) In general.--In the case of a health insurance issuer 
        that offers health insurance coverage in the group and 
        individual market through a network plan, the issuer may--
                    ``(A) limit the employers that may apply for such 
                coverage to those with eligible individuals who live, 
                work, or reside in the service area for such network 
                plan; and
                    ``(B) within the service area of such plan, deny 
                such coverage to such employers and individuals if the 
                issuer has demonstrated, if required, to the applicable 
                State authority that--
                            ``(i) it will not have the capacity to 
                        deliver services adequately to enrollees of any 
                        additional groups or any additional individuals 
                        because of its obligations to existing group 
                        contract holders and enrollees; and
                            ``(ii) it is applying this paragraph 
                        uniformly to all employers and individuals 
                        without regard to the claims experience of 
                        those individuals, employers and their 
                        employees (and their dependents), or any health 
                        status-related factor relating to such 
                        individuals, employees, and dependents.
            ``(2) 180-day suspension upon denial of coverage.--An 
        issuer, upon denying health insurance coverage in any service 
        area in accordance with paragraph (1)(B), may not offer 
        coverage in the group or individual market within such service 
        area for a period of 180 days after the date such coverage is 
        denied.
    ``(d) Application of Financial Capacity Limits.--
            ``(1) In general.--A health insurance issuer may deny 
        health insurance coverage in the group or individual market if 
        the issuer has demonstrated, if required, to the applicable 
        State authority that--
                    ``(A) it does not have the financial reserves 
                necessary to underwrite additional coverage; and
                    ``(B) it is applying this paragraph uniformly to 
                all employers and individuals in the group or 
                individual market in the State consistent with 
                applicable State law and without regard to the claims 
                experience of those individuals, employers and their 
                employees (and their dependents) or any health status-
                related factor relating to such individuals, employees, 
                and dependents.
            ``(2) 180-day suspension upon denial of coverage.--A health 
        insurance issuer upon denying health insurance coverage in 
        connection with group health plans in accordance with paragraph 
        (1) in a State may not offer coverage in connection with group 
        health plans in the group or individual market in the State for 
        a period of 180 days after the date such coverage is denied or 
        until the issuer has demonstrated to the applicable State 
        authority, if required under applicable State law, that the 
        issuer has sufficient financial reserves to underwrite 
        additional coverage, whichever is later. An applicable State 
        authority may provide for the application of this subsection on 
        a service-area-specific basis.
    ``(e) Definitions.--In this section and in section 197:
            ``(1) The term `Secretary' means the Secretary of Health 
        and Human Services.
            ``(2) The terms `genetic information', `genetic test', 
        `group health plan', `group market', `health insurance 
        coverage', `health insurance issuer', `group health insurance 
        coverage', `individual health insurance coverage', `individual 
        market', and `underwriting purpose' have the meanings given 
        such terms in section 2791 of the Public Health Service Act.

``SEC. 197. PROHIBITING DISCRIMINATION AGAINST INDIVIDUAL PARTICIPANTS 
              AND BENEFICIARIES BASED ON HEALTH STATUS.

    ``(a) In General.--A group health plan and a health insurance 
issuer offering group or individual health insurance coverage may not 
establish rules for eligibility (including continued eligibility) of 
any individual to enroll under the terms of the plan or coverage based 
on any of the following health status-related factors in relation to 
the individual or a dependent of the individual:
            ``(1) Health status.
            ``(2) Medical condition (including both physical and mental 
        illnesses).
            ``(3) Claims experience.
            ``(4) Receipt of health care.
            ``(5) Medical history.
            ``(6) Genetic information.
            ``(7) Evidence of insurability (including conditions 
        arising out of acts of domestic violence).
            ``(8) Disability.
            ``(9) Any other health status-related factor determined 
        appropriate by the Secretary.
    ``(b) In Premium Contributions.--
            ``(1) In general.--A group health plan, and a health 
        insurance issuer offering group or individual health insurance 
        coverage, may not require any individual (as a condition of 
        enrollment or continued enrollment under the plan) to pay a 
        premium or contribution which is greater than such premium or 
        contribution for a similarly situated individual enrolled in 
        the plan on the basis of any health status-related factor in 
        relation to the individual or to an individual enrolled under 
        the plan as a dependent of the individual.
            ``(2) Construction.--Nothing in paragraph (1) shall be 
        construed--
                    ``(A) to restrict the amount that an employer or 
                individual may be charged for coverage under a group 
                health plan except as provided in paragraph (3) or 
                individual health coverage, as the case may be; or
                    ``(B) to prevent a group health plan, and a health 
                insurance issuer offering group health insurance 
                coverage, from establishing premium discounts or 
                rebates or modifying otherwise applicable copayments or 
                deductibles in return for adherence to programs of 
                health promotion and disease prevention.
            ``(3) No group-based discrimination on basis of genetic 
        information.--
                    ``(A) In general.--For purposes of this section, a 
                group health plan, and health insurance issuer offering 
                group health insurance coverage in connection with a 
                group health plan, may not adjust premium or 
                contribution amounts for the group covered under such 
                plan on the basis of genetic information.
                    ``(B) Rule of construction.--Nothing in 
                subparagraph (A) or in paragraphs (1) and (2) of 
                subsection (d) shall be construed to limit the ability 
                of a health insurance issuer offering group or 
                individual health insurance coverage to increase the 
                premium for an employer based on the manifestation of a 
                disease or disorder of an individual who is enrolled in 
                the plan. In such case, the manifestation of a disease 
                or disorder in one individual cannot also be used as 
                genetic information about other group members and to 
                further increase the premium for the employer.
    ``(c) Genetic Testing.--
            ``(1) Limitation on requesting or requiring genetic 
        testing.--A group health plan, and a health insurance issuer 
        offering health insurance coverage in connection with a group 
        health plan, shall not request or require an individual or a 
        family member of such individual to undergo a genetic test.
            ``(2) Rule of construction.--Paragraph (1) shall not be 
        construed to limit the authority of a health care professional 
        who is providing health care services to an individual to 
        request that such individual undergo a genetic test.
            ``(3) Rule of construction regarding payment.--
                    ``(A) In general.--Nothing in paragraph (1) shall 
                be construed to preclude a group health plan, or a 
                health insurance issuer offering health insurance 
                coverage in connection with a group health plan, from 
                obtaining and using the results of a genetic test in 
                making a determination regarding payment (as such term 
                is defined for the purposes of applying the regulations 
                promulgated by the Secretary under part C of title XI 
                of the Social Security Act and section 264 of this Act, 
                as may be revised from time to time) consistent with 
                subsection (a).
                    ``(B) Limitation.--For purposes of subparagraph 
                (A), a group health plan, or a health insurance issuer 
                offering health insurance coverage in connection with a 
                group health plan, may request only the minimum amount 
                of information necessary to accomplish the intended 
                purpose.
            ``(4) Research exception.--Notwithstanding paragraph (1), a 
        group health plan, or a health insurance issuer offering health 
        insurance coverage in connection with a group health plan, may 
        request, but not require, that a participant or beneficiary 
        undergo a genetic test if each of the following conditions is 
        met:
                    ``(A) The request is made pursuant to research that 
                complies with part 46 of title 45, Code of Federal 
                Regulations, or equivalent Federal regulations, and any 
                applicable State or local law or regulations for the 
                protection of human subjects in research.
                    ``(B) The plan or issuer clearly indicates to each 
                participant or beneficiary, or in the case of a minor 
                child, to the legal guardian of such beneficiary, to 
                whom the request is made that--
                            ``(i) compliance with the request is 
                        voluntary; and
                            ``(ii) noncompliance will have no effect on 
                        enrollment status or premium or contribution 
                        amounts.
                    ``(C) No genetic information collected or acquired 
                under this paragraph shall be used for underwriting 
                purposes.
                    ``(D) The plan or issuer notifies the Secretary in 
                writing that the plan or issuer is conducting 
                activities pursuant to the exception provided for under 
                this paragraph, including a description of the 
                activities conducted.
                    ``(E) The plan or issuer complies with such other 
                conditions as the Secretary may by regulation require 
                for activities conducted under this paragraph.
    ``(d) Prohibition on Collection of Genetic Information.--
            ``(1) In general.--A group health plan, and a health 
        insurance issuer offering health insurance coverage in 
        connection with a group health plan, shall not request, 
        require, or purchase genetic information for underwriting 
        purposes.
            ``(2) Prohibition on collection of genetic information 
        prior to enrollment.--A group health plan, and a health 
        insurance issuer offering health insurance coverage in 
        connection with a group health plan, shall not request, 
        require, or purchase genetic information with respect to any 
        individual prior to such individual's enrollment under the plan 
        or coverage in connection with such enrollment.
            ``(3) Incidental collection.--If a group health plan, or a 
        health insurance issuer offering health insurance coverage in 
        connection with a group health plan, obtains genetic 
        information incidental to the requesting, requiring, or 
        purchasing of other information concerning any individual, such 
        request, requirement, or purchase shall not be considered a 
        violation of paragraph (2) if such request, requirement, or 
        purchase is not in violation of paragraph (1).
    ``(e) Genetic Information of a Fetus or Embryo.--Any reference in 
this part to genetic information concerning an individual or family 
member of an individual shall--
            ``(1) with respect to such an individual or family member 
        of an individual who is a pregnant woman, include genetic 
        information of any fetus carried by such pregnant woman; and
            ``(2) with respect to an individual or family member 
        utilizing an assisted reproductive technology, include genetic 
        information of any embryo legally held by the individual or 
        family member.
    ``(f) Programs of Health Promotion or Disease Prevention.--
            ``(1) General provisions.--
                    ``(A) General rule.--For purposes of subsection 
                (b)(2)(B), a program of health promotion or disease 
                prevention (referred to in this subsection as a 
                `wellness program') shall be a program offered by an 
                employer that is designed to promote health or prevent 
                disease that meets the applicable requirements of this 
                subsection.
                    ``(B) No conditions based on health status 
                factor.--If none of the conditions for obtaining a 
                premium discount or rebate or other reward for 
                participation in a wellness program is based on an 
                individual satisfying a standard that is related to a 
                health status factor, such wellness program shall not 
                violate this section if participation in the program is 
                made available to all similarly situated individuals 
                and the requirements of paragraph (2) are complied 
                with.
                    ``(C) Conditions based on health status factor.--If 
                any of the conditions for obtaining a premium discount 
                or rebate or other reward for participation in a 
                wellness program is based on an individual satisfying a 
                standard that is related to a health status factor, 
                such wellness program shall not violate this section if 
                the requirements of paragraph (3) are complied with.
            ``(2) Wellness programs not subject to requirements.--If 
        none of the conditions for obtaining a premium discount or 
        rebate or other reward under a wellness program as described in 
        paragraph (1)(B) are based on an individual satisfying a 
        standard that is related to a health status factor (or if such 
        a wellness program does not provide such a reward), the 
        wellness program shall not violate this section if 
        participation in the program is made available to all similarly 
        situated individuals. The following programs shall not have to 
        comply with the requirements of paragraph (3) if participation 
        in the program is made available to all similarly situated 
        individuals:
                    ``(A) A program that reimburses all or part of the 
                cost for memberships in a fitness center.
                    ``(B) A diagnostic testing program that provides a 
                reward for participation and does not base any part of 
                the reward on outcomes.
                    ``(C) A program that encourages preventive care 
                related to a health condition through the waiver of the 
                copayment or deductible requirement under group health 
                plan for the costs of certain items or services related 
                to a health condition (such as prenatal care or well-
                baby visits).
                    ``(D) A program that reimburses individuals for the 
                costs of smoking cessation programs without regard to 
                whether the individual quits smoking.
                    ``(E) A program that provides a reward to 
                individuals for attending a periodic health education 
                seminar.
            ``(3) Wellness programs subject to requirements.--If any of 
        the conditions for obtaining a premium discount, rebate, or 
        reward under a wellness program as described in paragraph 
        (1)(C) is based on an individual satisfying a standard that is 
        related to a health status factor, the wellness program shall 
        not violate this section if the following requirements are 
        complied with:
                    ``(A) The reward for the wellness program, together 
                with the reward for other wellness programs with 
                respect to the plan that requires satisfaction of a 
                standard related to a health status factor, shall not 
                exceed 30 percent of the cost of employee-only coverage 
                under the plan. If, in addition to employees or 
                individuals, any class of dependents (such as spouses 
                or spouses and dependent children) may participate 
                fully in the wellness program, such reward shall not 
                exceed 30 percent of the cost of the coverage in which 
                an employee or individual and any dependents are 
                enrolled. For purposes of this paragraph, the cost of 
                coverage shall be determined based on the total amount 
                of employer and employee contributions for the benefit 
                package under which the employee is (or the employee 
                and any dependents are) receiving coverage. A reward 
                may be in the form of a discount or rebate of a premium 
                or contribution, a waiver of all or part of a cost-
                sharing mechanism (such as deductibles, copayments, or 
                coinsurance), the absence of a surcharge, or the value 
                of a benefit that would otherwise not be provided under 
                the plan. The Secretaries of Labor, Health and Human 
                Services, and the Treasury may increase the reward 
                available under this subparagraph to up to 50 percent 
                of the cost of coverage if the Secretaries determine 
                that such an increase is appropriate.
                    ``(B) The wellness program shall be reasonably 
                designed to promote health or prevent disease. A 
                program complies with the preceding sentence if the 
                program has a reasonable chance of improving the health 
                of, or preventing disease in, participating individuals 
                and it is not overly burdensome, is not a subterfuge 
                for discriminating based on a health status factor, and 
                is not highly suspect in the method chosen to promote 
                health or prevent disease.
                    ``(C) The plan shall give individuals eligible for 
                the program the opportunity to qualify for the reward 
                under the program at least once each year.
                    ``(D) The full reward under the wellness program 
                shall be made available to all similarly situated 
                individuals. For such purpose, among other things:
                            ``(i) The reward is not available to all 
                        similarly situated individuals for a period 
                        unless the wellness program allows--
                                    ``(I) for a reasonable alternative 
                                standard (or waiver of the otherwise 
                                applicable standard) for obtaining the 
                                reward for any individual for whom, for 
                                that period, it is unreasonably 
                                difficult due to a medical condition to 
                                satisfy the otherwise applicable 
                                standard; and
                                    ``(II) for a reasonable alternative 
                                standard (or waiver of the otherwise 
                                applicable standard) for obtaining the 
                                reward for any individual for whom, for 
                                that period, it is medically 
                                inadvisable to attempt to satisfy the 
                                otherwise applicable standard.
                            ``(ii) If reasonable under the 
                        circumstances, the plan or issuer may seek 
                        verification, such as a statement from an 
                        individual's physician, that a health status 
                        factor makes it unreasonably difficult or 
                        medically inadvisable for the individual to 
                        satisfy or attempt to satisfy the otherwise 
                        applicable standard.
                    ``(E) The plan or issuer involved shall disclose in 
                all plan materials describing the terms of the wellness 
                program the availability of a reasonable alternative 
                standard (or the possibility of waiver of the otherwise 
                applicable standard) required under subparagraph (D). 
                If plan materials disclose that such a program is 
                available, without describing its terms, the disclosure 
                under this subparagraph shall not be required.''.
    (b) Conforming Amendment.--The table of contents under section 1(b) 
of the Health Insurance Portability and Accountability Act of 1996 
(Public Law 104-191) is amended by inserting after the item relating to 
section 195 the following:

``Sec. 196. Guaranteed Availability of Coverage.
``Sec. 197. Prohibiting Discrimination against individual participants 
                            and beneficiaries based on health 
                            status.''.
    (c) Enforcement.--
            (1) PHSA.--Section 2723 of the Public Health Service Act 
        (42 U.S.C. 300gg-22) is amended--
                    (A) in subsection (a)--
                            (i) in paragraph (1), by inserting ``and 
                        sections 196 and 197 of the Health Insurance 
                        Portability and Accountability Act of 1996'' 
                        after ``this part''; and
                            (ii) in paragraph (2), by inserting ``or 
                        section 196 or 197 of the Health Insurance 
                        Portability and Accountability Act of 1996'' 
                        after ``this part''; and
                    (B) in subsection (b), by inserting ``or section 
                196 or 197 of the Health Insurance Portability and 
                Accountability Act of 1996'' after ``this part'' each 
                place such term appears.
            (2) ERISA.--Section 715 of the Employee Retirement Income 
        Security Act of 1974 (29 U.S.C. 1185d) is amended by adding at 
        the end the following:
    ``(c) Additional Provisions.--Section 196 of the Health Insurance 
Portability and Accountability Act of 1996 shall apply to health 
insurance issuers providing health insurance coverage in connection 
with group health plans, and section 197 of such Act shall apply to 
group health plans and health insurance issuers providing health 
insurance coverage in connection with group health plans, as if 
included in this subpart, and to the extent that any provision of this 
part conflicts with a provision of such section 196 with respect to 
health insurance issuers providing health insurance coverage in 
connection with group health plans or of such section 197 with respect 
to group health plans or health insurance issuers providing health 
insurance coverage in connection with group health plans, the 
provisions of such sections 196 and 197 shall apply.''.
            (3) IRC.--Section 9815 of the Internal Revenue Code of 1986 
        is amended by adding at the end the following:
    ``(c) Additional Provisions.--Section 196 of the Health Insurance 
Portability and Accountability Act of 1996 shall apply to health 
insurance issuers providing health insurance coverage in connection 
with group health plans, and section 197 of such Act shall apply to 
group health plans and health insurance issuers providing health 
insurance coverage in connection with group health plans, as if 
included in this subchapter, and to the extent that any provision of 
this chapter conflicts with a provision of such section 196 with 
respect to health insurance issuers providing health insurance coverage 
in connection with group health plans or of such section 197 with 
respect to group health plans or health insurance issuers providing 
health insurance coverage in connection with group health plans, the 
provisions of such sections 196 and 197 shall apply.''.
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