111 HR 892 IH: Pre-existing Conditions Protection Act of 2021
U.S. House of Representatives
2021-02-05
text/xml
EN
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I
117th CONGRESS
1st Session
H. R. 892
IN THE HOUSE OF REPRESENTATIVES
February 5, 2021
Mrs. Rodgers of Washington (for herself, Mr. Bilirakis, Mr. Mullin, Mr. McKinley, Mr. Walberg, Mr. Burgess, Mr. Chabot, Mr. Garcia of California, Mr. Gallagher, Mr. Kelly of Pennsylvania, Mr. Perry, Mrs. Wagner, Mr. Hern, Mr. Bucshon, Mr. Upton, Mr. Hudson, Mr. Taylor, Mr. Grothman, Mr. Amodei, Mr. Latta, Mr. Long, Mr. Rouzer, Mr. Newhouse, Mr. Kinzinger, Mr. Curtis, Mr. Smith of Missouri, Mr. Murphy of North Carolina, Ms. Stefanik, Mr. Balderson, Mr. Bergman, Mrs. Hartzler, Mr. Young, and Mr. Guthrie) introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committees on Ways and Means, and Education and Labor, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
A BILL
To amend the Public Health Service Act to prohibit application of pre-existing condition exclusions and to guarantee availability of health insurance coverage in the individual and group market, contingent on the enactment of legislation repealing the Patient Protection and Affordable Care Act, and for other purposes.
1.

Short title
This Act may be cited as the “Pre-existing Conditions Protection Act of 2021”.
2.

Prohibition of pre-existing condition exclusions
(a)

Group market
Subject to section 6(a) of this Act, subpart 1 of part A of title XXVII of the Public Health Service Act (42 U.S.C. 300gg et seq.), as restored or revived pursuant to PPACA repeal legislation described in section 6(b) of this Act, is amended by striking section 2701 and inserting the following:
“2701.

Prohibition of pre-existing condition exclusions
(a)

In General
A group health plan or a health insurance issuer offering group health insurance coverage may not impose any pre-existing condition exclusion with respect to such plan or coverage.
(b)

Definitions
For purposes of this section:
(1)

pre-existing condition exclusion
(A)

In general
The term pre-existing condition exclusion means, with respect to a group health plan or health insurance coverage, a limitation or exclusion of benefits relating to a condition based on the fact that the condition was present before the date of enrollment in such plan or for such coverage, whether or not any medical advice, diagnosis, care, or treatment was recommended or received before such date.
(B)

Treatment of genetic information
Genetic information shall not be treated as a pre-existing condition in the absence of a diagnosis of the condition related to such information.
(2)

Date of enrollment
The term date of enrollment means, with respect to an individual covered under a group health plan or health insurance coverage, the date of enrollment of the individual in the plan or coverage or, if earlier, the first day of the waiting period for such enrollment.
(3)

Waiting period
The term waiting period means, with respect to a group health plan and an individual who is a potential participant or beneficiary in the plan, the period that must pass with respect to the individual before the individual is eligible to be covered for benefits under the terms of the plan.”.
(b)

Individual market
Subject to section 6(a) of this Act, subpart 1 of part B of title XXVII of the Public Health Service Act (42 U.S.C. 300gg–41 et seq.), as restored or revived pursuant to PPACA repeal legislation described in section 6(b) of this Act, is amended by adding at the end the following:
“2746.

Prohibition of pre-existing condition exclusions or other discrimination based on health status
The provisions of section 2701 shall apply to health insurance coverage offered to individuals by a health insurance issuer in the individual market in the same manner as it applies to health insurance coverage offered by a health insurance issuer in the group market.”.
3.

Guaranteed availability of coverage
(a)

Group market
Subject to section 6(a) of this Act, subpart 3 of part A of title XXVII of the Public Health Service Act, as restored or revived pursuant to PPACA repeal legislation described in section 6(b) of this Act, is amended by striking section 2711 (42 U.S.C. 300gg–11) and inserting the following:
“2711.

Guaranteed availability of coverage
(a)

Guaranteed issuance of coverage in the group market
Subject to subsection (b), each health insurance issuer that offers health insurance coverage in the group market in a State shall accept every employer and every individual in a group 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 establish special enrollment periods for qualifying events (as such term is defined in section 603 of the Employee Retirement Income Security Act of 1974).”.
(b)

Individual market
Subject to section 6(a) of this Act, subpart 1 of part B of title XXVII of the Public Health Service Act, as restored or revived pursuant to PPACA repeal legislation described in section 6(b) of this Act, is amended by striking section 2741 of such Act (42 U.S.C. 300gg–41) and inserting the following:
“2741.

Guaranteed availability of coverage
The provisions of section 2711 shall apply to health insurance coverage offered to individuals by a health insurance issuer in the individual market in the same manner as such provisions apply to health insurance coverage offered to employers by a health insurance issuer in connection with health insurance coverage in the group market. For purposes of this section, the Secretary shall treat any reference of the word employer in such section as a reference to the term individual.”.
4.

Prohibiting discrimination against individual participants and beneficiaries based on health status
(a)

Group market
Subject to section 6(a) of this Act, section 2702 of the Public Health Service Act, as restored or revived pursuant to PPACA repeal legislation described in section 6(b) of this Act, is amended to read as follows:
“2702.

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 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 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
(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, 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 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 the Health Insurance Portability and Accountability Act of 1996, 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)
non-compliance 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 (as defined in section 2791).
(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.
(g)

Existing Programs
Nothing in this section shall prohibit a program of health promotion or disease prevention that was established prior to the date of enactment of this section and applied with all applicable regulations, and that is operating on such date, from continuing to be carried out for as long as such regulations remain in effect.
(h)

Regulations
Nothing in this section shall be construed as prohibiting the Secretaries of Labor, Health and Human Services, or the Treasury from promulgating regulations in connection with this section.”.
(b)

Individual market
Subject to section 6(a) of this Act, subpart 1 of part B of title XXVII of the Public Health Service Act, as restored or revived pursuant to PPACA repeal legislation described in section 6(b) of this Act and amended by section 2(b), is further amended by adding at the end the following:
“2747.

Prohibiting discrimination against individual participants and beneficiaries based on health status
The provisions of section 2702 (other than subsections (b)(2)(B) and (f) of such section) shall apply to health insurance coverage offered to individuals by a health insurance issuer in the individual market in the same manner as such provisions apply to health insurance coverage offered to employers by a health insurance issuer in connection with health insurance coverage in the group market.”.
5.

Incorporation into ERISA and Internal Revenue Code
(a)

ERISA
Subpart B of part 7 of subtitle A of title I of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1181 et seq.) is amended by adding at the end the following:
“715.

Additional market reforms
Sections 2701, 2702, and 2711 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 a section with respect to group health plans, or health insurance issuers providing health insurance coverage in connection with group health plans, the provisions of such section shall apply.”.
(b)

IRC
Subchapter B of chapter 100 of the Internal Revenue Code of 1986 is amended by adding at the end the following:
“9815.

Additional market reforms
Sections 2701, 2702, and 2711 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 subchapter conflicts with a provision of such a section with respect to group health plans, or health insurance issuers providing health insurance coverage in connection with group health plans, the provisions of such section shall apply.”.
6.

Effective date contingent on repeal of PPACA
(a)

In general
Sections 2, 3, 4, and 5 and the amendments made by such sections shall take effect upon the enactment of PPACA repeal legislation described in subsection (b) and such sections and amendments shall have no force or effect if such PPACA repeal legislation is not enacted.
(b)

PPACA repeal legislation described
For purposes of subsection (a), PPACA repeal legislation described in this subsection is legislation that—
(1)
repeals Public Law 111–148, and restores or revives the provisions of law amended or repealed, respectively, by such Act as if such Act had not been enacted and without further amendment to such provisions of law; and
(2)
repeals title I and subtitle B of title II of the Health Care and Education Reconciliation Act of 2010 (Public Law 111–152), and restores or revives the provisions of law amended or repealed, respectively, by such title or subtitle, respectively, as if such title and subtitle had not been enacted and without further amendment to such provisions of law.