[Congressional Record Volume 143, Number 10 (Thursday, January 30, 1997)]
[Senate]
[Pages S884-S890]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. D'AMATO (for himself, Ms. Snowe, Mrs. Feinstein, Mr. 
        Hollings, Mr. Moynihan, Mr. Domenici, Mr. Faircloth, Ms. 
        Moseley-Braun, Mr. Biden, Mr. Inouye, Mr. Murkowski, Mr. Dodd, 
        Mr. Kerrey, Mr. Hatch, Mr. Gregg, Mr. Smith, and Mr. Ford):
  S. 249. A bill to require that health plans provide coverage for a 
minimum hospital stay for mastectomies and lymph node dissection for 
the treatment of breast cancer, coverage for reconstructive surgery 
following mastectomies, and coverage for secondary consultations; to 
the Committee on Finance.


            the women's health and cancer rights act of 1997

  Mr. D'AMATO. Mr. President, I come here today and rise to introduce a 
bill that I think is unfortunately necessary, unfortunately because 
HMO's and insurance carriers--and I don't mean this for all, but we are 
seeing a growing tendency--are doing the kinds of things nobody would 
have imagined, and they are doing it and interfering with good, sound 
medical care, because they are more interested in the bottom line.

  Indeed, there are some who are already beginning to drumbeat against 
health maintenance organizations per se, and we would be losers, 
because there are important innovations and savings that can be made, 
but those savings and innovations should not be made at the expense of 
the traditional and important and sacred--sacred--right that a patient 
should have with their physician.
  Maybe it takes the specter of cancer and breast cancer, in 
particular, because people are concerned and it is a fright, to get 
people to focus on what is taking place, and that is insurance carriers 
placing arbitrary limits on patients as it relates to the length of 
stay or time that they can use a medical facility, a hospital.
  It is interesting and, indeed, ironic that as I make these remarks, 
the presiding officer who sits in the chair and presides over the 
Senate today is a distinguished Senator and a distinguished citizen who 
spent so much of his life in the area of healing and of practicing 
medicine and who knows better than I. I am so pleased to be able to 
have his counsel and to share these thoughts with him today personally.
  While I introduce this legislation on behalf of 16 colleagues in the 
Senate of the United States and 20-plus Representatives in the House, 
Democrats and Republicans--totally bipartisan--I do not suggest that 
this is the cure-all for what we see taking place. Indeed, we have 
specifically limited this legislative initiative.
  There were calls and outcries that HMO's and insurance carriers be 
required to provide at least a minimum of time as it relates to 
mastectomies. Many in the medical profession came forward and said, 
``We think that is the worst kind of legislation. We would rather see 
no time, nor do we think that the health providers should be setting 
times.''
  That is a larger debate for a larger area, but I subscribe to that, 
and I think that we should say very clearly here in the U.S. Senate and 
Congress, By gosh, insurance carriers should not be saying, ``If there 
is a particular disease, we are only going to insure you up to X 
hours.''
  What happens if there is a complication? It may be that a procedure, 
whether it be a mastectomy or whether it be prostate cancer or whether 
it be some other disease, that ordinarily, under normal circumstances, 
there is an average length of time. It might be 1 day, 2 days, 3 days. 
But who is to say, if there is a complication and it takes 6 days or 2 
weeks, are we then going to

[[Page S885]]

say something that ordinarily would be covered in insurance policies, 
that somehow because someone has adopted a rule--and why they have 
adopted that rule; I don't know how they can practice that, they are 
not practitioners--that we are going to exclude you if you go over that 
period of time?
  This is wrong. This should not be the way in which we attempt to 
manage health care costs, and it is, I believe, taken by many people to 
mean the greed of the industry.
  The fact that there are now today many in the HMO business, some 
almost startup companies overnight, making millions and millions of 
dollars--I am not against profits, but if you are going to make profits 
by denying adequate basic medical treatment, then that is wrong, that 
is immoral and we in the Congress of the United States have a business 
to do something about it.
  I know there are going to be those who say let the marketplace work, 
let free competition work. Well, that is naive. To simply say that by 
insisting on a minimum standard, that minimums be observed, that no one 
interferes with the patient and that very special relationship with the 
doctor--we are now seeing that taking place, because there are those 
carriers who are punishing doctors, punishing them by denying them 
adequate compensation or penalizing them by denying them moneys they 
otherwise would have because they recommend treatments that may cost 
that insurance carrier more but which they feel are necessary for the 
safety, health, and protection of their patients.
  How dare we permit and countenance that kind of thing today? We know 
it is going on, and to the health maintenance organizations and to the 
insurance carriers who say it is not going on and this legislation is 
not necessary, well, if it is not necessary, don't oppose it. It is 
that simple. If you are not penalizing doctors or rewarding them 
because they hold back on treatments that might cost more and which are 
necessary, then why should you be opposed to it? If you are not 
arbitrarily limiting the time that a patient may have or necessary 
treatments, then why would you be opposed to it?
  This legislation basically says you cannot do that, you cannot 
prescribe 48 hours as it relates to mastectomies. You cannot deny that 
doctor-patient relationship by penalizing a doctor. We say you are not 
permitted to do that, or rewarding a doctor on the basis of cost-
effectiveness.

  In a third provision, we say that when it comes to the devastating 
disease and the specter of cancer, not only breast cancer, but prostate 
cancer--all cancers--that people are entitled to a second opinion. 
There is not anyone I know who, if they faced a diagnosis and were 
given a particular course of treatment that would be suggested, that 
they would not look for a second opinion. That is fact.
  If the doctor and the attending physician recommended a second 
opinion, our legislation says the company must pay for that. If that 
physician feels that there is a need to get some specialist outside of 
the organization, outside of that HMO, the company must pay for that. 
What do we say to the average worker who has no independent resources 
who can't pay $500 or $1,000, or whatever it might be for that 
specialist, for that second opinion? You cannot have it?
  So, Mr. President, we provide that with respect to this particular 
disease. I believe we should go further, and I think in the fullness of 
the discussions and the legislative actions that this Congress will 
undertake that we will examine this, and your committee, the Health 
Committee, in particular will be looking at it.
  But I think certainly at this time we should begin to say, Listen, as 
it relates to this particular disease of cancer, where the treating and 
attending physician recommends a second opinion, that patient should 
have the ability and the right to be covered and have that second 
opinion.
  I am going to relate two specific examples, because we have spent 
some time in shaping and putting together this legislation and it is by 
no ways written in stone or steel. It is in the sand, it is something 
to be looked at, something to be worked with. I look forward to the 
help and recommendations of the distinguished Senator from Tennessee, 
who presides today, on how we can improve and make this legislative 
effort a better one.
  Last, but not least, in the area of breast cancer in particular, one 
of the very shattering thoughts and a fear that women live with today 
is the fact that they may be one of the eight who is diagnosed with 
breast cancer, and that is a national average. They are concerned about 
the treatment that might permanently disfigure them and, therefore, it 
becomes absolutely imperative that, as a nation, we indicate to people 
that there are courses of treatment that cannot only save a life but, 
indeed, do not have to be disfiguring, and in this way, as it relates 
to breast cancer in particular, have more women coming in for early 
diagnosis and treatment and avoid, No. 1, death, and, No. 2, 
disfigurement, because we provide that breast cancer reconstruction and 
that reconstructive surgery not be considered cosmetic.
  If someone loses an ear, that surgery is not considered cosmetic. 
However, incredibly, we find insurance carriers denying reconstruction 
on the basis that it is cosmetic. So we create a double tragedy by 
denying women who have that disease and who don't have the ability to 
pay for reconstruction the ability to have that. And, second, and 
probably just as important, there are many who will not go for early 
diagnosis, and, therefore, the treatment is not available to them until 
it is too late. That has to be avoided.
  So we provide that HMO's and insurance carriers must make this 
available. It is not an option that they can just simply turn away.
  The title of our bill is called the ``Women's Health and Cancer 
Rights Act of 1997.''
  Mr. President, I rise today to introduce the Women's Health and 
Cancer Rights Act of 1997. This important reform legislation will 
significantly change the way insurance companies provide coverage for 
women diagnosed with breast cancer. The problem of the so-called drive-
through mastectomies must be eliminated from our society. Physicians 
must not be forced to have their best medical judgment questioned by 
insurance companies who put their bottom line before a woman's health. 
The women of New York and America deserve better.
  Today, there are 2.6 million women living with breast cancer. In 1997 
alone, more than 184,000 women will be diagnosed with breast cancer 
and, tragically, 44,000 women will die of this dreaded disease. Breast 
cancer is still the most common form of cancer in women; every 3 
minutes another woman is diagnosed and every 11 minutes another woman 
dies of breast cancer. The D'Amato-Feinstein-Snowe legislation makes 
critically important changes in how breast cancer patients receive 
medical care.
  Specifically, the bill requires health insurance companies to cover 
an unlimited stay in the hospital following mastectomies, lumpectomies, 
and lymph node dissection for the treatment of breast cancer when the 
attending physician decides a longer stay is necessary. Every physician 
would have the freedom to prescribe longer stays when necessary, and 
the confidence that insurers will not punish them for practicing sound 
medical treatment. My bill would make it illegal to penalize a doctor 
for following good medical judgment. The time for a hospital stay will 
no longer be an arbitrary determination made on the basis of saving 
money.

  Another important provision of the D'Amato-Feinstein-Snowe bill 
ensures that mastectomy patients will have access to reconstructive 
surgery. Scores of women have been denied reconstructive surgery 
following mastectomies because insurers have deemed the procedure 
cosmetic and not medically necessary. It is absolutely unacceptable and 
wrong that many insurers deem this essential surgery as cosmetic, and 
it is a practice that must be changed.
  The Women's Health and Cancer Rights Act also includes a unique 
provision for coverage of second opinions by specialists. The bill 
would require health care providers to pay for secondary consultations 
when cancer tests come back either negative or positive. This important 
provision will help identify false negatives as well as false 
positives. Additionally, if the attending physician recommends 
consultation by a specialist not covered by the

[[Page S886]]

health plan, the bill would allow the doctor to make such a referral at 
no additional cost to the patient.
  This legislation is particularly important for the women of Long 
Island. Our families have been ravaged by this horrible disease. Our 
grandmothers, mothers and daughters, sisters and wives, children and 
friends have been afflicted at rates that are unexplained and far too 
high.
  We must continue to work together to find a cure for breast cancer. 
But until a cure is found, we must ensure that women receive the 
treatment they deserve. This legislation protects women and anyone ever 
diagnosed with cancer. It is the most comprehensive bill introduced in 
the Senate and I am proud to offer it today.
  I want to thank Senator Feinstein and Senator Snowe for the 
contributions that they have made as it relates to helping prepare this 
legislation. The Women's Health and Cancer Rights Act is important. It 
is important again that we preserve adequate, decent, affordable 
medical care and not tamper with that sacred relationship that should 
be preserved between a doctor and his patient.
  I would like, if I might, to share with the Senate the remarks of a 
great surgeon, Dr. Larry Norton, Chief of Breast Cancer Medicine at 
Sloan Kettering, one of the great cancer hospitals in this Nation. He 
is reflecting about a patient. I will not read all of it. He tells why, 
I think, this legislation is so necessary. He said:

       There was a patient that I saw on a second opinion not too 
     long ago who paid herself for a second opinion because her 
     HMO . . . wouldn't [do that]. I saw her and told her about a 
     therapy that was very scientifically based that we thought 
     was superior here, in fact clinical trials have demonstrated 
     to be superior, and it has become a standard now, throughout 
     the United States. . . . we offered her that particular 
     treatment.
       Speaking to the person on the other end of the phone at her 
     managed care plan, and I managed to work my way up to the 
     physician level through several clerical levels. . . .

  Here is the chief of surgery at Sloan Kettering Memorial calling an 
HMO to suggest this course of treatment. I want to describe what is 
going on. He had to call clerk after clerk after clerk, and he finally 
got someone who was a physician. By the way, most people cannot do that 
and they cannot work through that. And he was told that they would not 
pay for the care.
  He went on to say--and this is the person on the other end:

       . . . Dr. Norton, we are not saying . . .

  Imagine, this is an HMO, a doctor on the other side of the HMO. He is 
saying:

       . . . Dr. Norton, we are not saying that [it] is not the 
     right treatment, we are just saying that we are not going to 
     pay for it.

  By the way, what I am reading to you is testimony he gave publicly 
about 10 days ago in New York at Sloan Memorial. He went on to say:

       I put the phone down, shaking, and called her [that is, his 
     patient] to discuss this with her, and her 10-year-old son 
     answered the phone. I said who I was and he said, calling to 
     his mother, ``Mommy, your doctor is on the phone.'' I knew at 
     that moment that the discussion that she could not get the 
     care that was appropriate was not what I was going to say. 
     Through enormous efforts, and through the support of my 
     terrific institution, [we] were able to provide her that care 
     and things turned out very well for her, as we could have 
     anticipated.

  The doctor goes on to say:

       The point is that there is a holy alliance between the 
     doctor and the patient, and the entire structure of medicine 
     is because of that holy alliance. It is a religious 
     experience [a religious experience] to take care of a patient 
     well and, if you feel any less motivation, you are not [going 
     to be] doing your job as a physician. We feel that kind of 
     motivation here. We are living in an era where a lot of steps 
     are coming between the doctors and the patients. Their 
     motivations are not necessarily the same motivations that 
     have driven us to this point of advance.
       What we see before us today . . .

  He talks about legislation and the fact that it was a bipartisan 
effort to protect that relationship, that special relationship that I 
know that the President understands well.
  Again, we are going to hear cries of intrusion, or about the 
marketplace. Well, since when do you tell me we do not have a right to 
set basic minimums? We do that in many areas. We do that as it relates 
to quality of food. We do that as it relates to protecting our drinking 
water. We certainly have a right to say you cannot interfere with that 
special relationship by punishing a doctor because he is giving what he 
feels is the proper medical advice and withholding from him and having 
him think that he may be penalized. That is wrong. That is wrong.
  Mr. President, I want to share another experience. When we initially 
talked about introducing this bill, we did not talk about breast cancer 
reconstruction. And I got a call from the executive director of the 
American College of Obstetricians and Gynecologists of New York, a 
remarkable woman by the name of Mary McCarthy. She said, ``Senator, 
we've been making studies.'' She was a person who brought to our 
attention, Senator Feinstein and Senator Snowe, and others, the fact 
that there was this great problem of insurance carriers not providing 
for reconstructive surgery when it came to the breast and considering 
it as cosmetic.
  Let me just read to you her words which communicate the problem. Not 
only is she the executive director of the American College of 
Obstetricians and Gynecologists of New York, she goes on to say:

       I am a breast cancer patient myself. I would like to share 
     [with you] my experiences on the three major subjects 
     within the bill, the mastectomy surgery, the 
     reconstructive surgery and the second opinion.

  She says:

       I thought I was very well informed on health care and I 
     thought I had excellent health care coverage. Yet my own 
     reconstructive surgery and my second opinion were both denied 
     by my health care plan. My reconstruction was denied last 
     April as not medically necessary.

  She went on to say she was able to eventually get this surgery. She 
said:

       I am concerned that other women do not have these kinds of 
     resources. I would like to touch, although personal, on the 
     importance of reconstructive surgery for women who opt to 
     have reconstruction surgery. My mastectomy was clinically 
     curative surgery, but my reconstruction was emotionally 
     healing. There is no longer a reminder every day of my 
     cancer. When I get dressed in the morning, in an intimate 
     moment with my husband, if I have my nightgown on at home 
     with my kids, I look normal and I feel normal. If you lose an 
     ear or a testicle, or part of your face to cancer, there is 
     no question that reconstruction is covered. Yet denials for 
     breast [cancer] reconstruction are serious and they are 
     rising.
       For a disease with the magnitude of cancer, it is very 
     important to have access to second opinions and to be able to 
     [go] outside your HMO, if necessary, for the kind of 
     expertise you need. To my surprise, and to the surprise of my 
     physicians within my plan, my plan adamantly refused to 
     authorize my second opinion. I paid for my second opinion 
     myself, not all women have these resources . . . No family 
     should be forced to assume this kind of responsibility.

  Then she goes on to say something.

       When I was in the hospital after my surgery . . . [the 
     nurses] actually cringed [the people responsible for taking 
     care of me] and looked upset when they changed my dressing. I 
     spoke candidly to my husband, who is loving and caring and 
     goes with me to most of my medical appointments, and he felt 
     that he could not have handled the emotional or the clinical 
     responsibility of helping with drains and bandages. The 
     appropriate length of stay is critically needed and the 
     language in the bill to ensure that the appropriate stay for 
     each individual is met is vital.

  What she is saying is that if she had been discharged, her husband 
could not have taken care of her. And you just simply cannot set a time 
limit.
  Mr. President, I want to offer that bill. I send it to the desk with 
the cosponsors. I commend all of my colleagues to join in this 
legislative effort. It is one that we will be serious and purposeful 
for. I hope we can have hearings sooner rather than later.
  Again, as I said, this is totally bipartisan in nature. Cancer does 
not look to see the politics of its victims. In particular, we address 
some of the major concerns as they relate to cancer. But I think 
problems that we have go well beyond this. This is something that this 
Congress should become involved in, the vital interest of the health of 
all of our citizens.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 249

       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 ``Women's Health and Cancer 
     Rights Act of 1997''.

     SEC. 2. FINDINGS.

       Congress finds that--

[[Page S887]]

       (1) the offering and operation of health plans affect 
     commerce among the States;
       (2) health care providers located in a State serve patients 
     who reside in the State and patients who reside in other 
     States; and
       (3) 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 1 State as well as health 
     plans operating among the several States.

     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 (as 
     added by section 603(a) of the Newborns' and Mothers' Health 
     Protection Act of 1996 and amended by section 702(a) of the 
     Mental Health Parity Act of 1996) is amended by adding at the 
     end the following new section:

     ``SEC. 713. REQUIRED COVERAGE FOR MINIMUM HOSPITAL STAY FOR 
                   MASTECTOMIES AND LYMPH NODE DISSECTIONS FOR THE 
                   TREATMENT OF BREAST CANCER, COVERAGE FOR 
                   RECONSTRUCTIVE SURGERY FOLLOWING MASTECTOMIES, 
                   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 coverage 
     with respect to the treatment of breast cancer is provided 
     for a period of time as is determined by the attending 
     physician, in consultation with the patient, to be medically 
     appropriate following--
       ``(A) a mastectomy;
       ``(B) a lumpectomy; or
       ``(C) a lymph node dissection for the treatment of breast 
     cancer.
       ``(2) Exception.--Nothing in this section shall be 
     construed as requiring the provision of inpatient coverage if 
     the attending physician and patient determine that a shorter 
     period of hospital stay is medically appropriate.
       ``(b) Reconstructive Surgery.--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 with respect to a mastectomy shall 
     ensure that, in a case in which a mastectomy patient elects 
     breast reconstruction, coverage is provided for--
       ``(1) all stages of reconstruction of the breast on which 
     the mastectomy has been performed; and
       ``(2) surgery and reconstruction of the other breast to 
     produce a symmetrical appearance;

     in the manner determined by the attending physician and the 
     patient to be appropriate, and consistent with any fee 
     schedule contained in the plan.
       ``(c) 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) 
     or (b).
       ``(d) 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 any literature or 
     correspondence 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;
       ``(2) as part of any yearly informational packet sent to 
     the participant or beneficiary; or
       ``(3) not later than January 1, 1998;

     whichever is earlier.
       ``(e) 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 full coverage is provided for secondary 
     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 full 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.
       ``(f) 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 (e).''.
       (b) Clerical Amendment.--The table of contents in section 1 
     of such Act, as amended by section 603 of the Newborns' and 
     Mothers' Health Protection Act of 1996 and section 702 of the 
     Mental Health Parity Act of 1996, is amended by inserting 
     after the item relating to section 712 the following new 
     item:

``Sec. 713. Required coverage for minimum hospital stay for 
              mastectomies and lymph node dissections for the treatment 
              of breast cancer, coverage for reconstructive surgery 
              following mastectomies, 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 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 
     later of--
       (A) 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), or
       (B) January 1, 1998.

     For purposes of subparagraph (A), 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 (as added by section 604(a) of the 
     Newborns' and Mothers' Health Protection Act of 1996 and 
     amended by section 703(a) of the Mental Health Parity Act of 
     1996) is amended by adding at the end the following new 
     section:

     ``SEC. 2706. REQUIRED COVERAGE FOR MINIMUM HOSPITAL STAY FOR 
                   MASTECTOMIES AND LYMPH NODE DISSECTIONS FOR THE 
                   TREATMENT OF BREAST CANCER, COVERAGE FOR 
                   RECONSTRUCTION SURGERY FOLLOWING MASTECTOMIES, 
                   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 coverage 
     with respect to the treatment of breast cancer is provided 
     for a period of time as is determined by the attending 
     physician, in consultation with the patient, to be medically 
     appropriate following--
       ``(A) a mastectomy;
       ``(B) a lumpectomy; or
       ``(C) a lymph node dissection for the treatment of breast 
     cancer.
       ``(2) Exception.--Nothing in this section shall be 
     construed as requiring the provision of inpatient coverage if 
     the attending physician and patient determine that a shorter 
     period of hospital stay is medically appropriate.
       ``(b) Reconstructive Surgery.--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 with respect to a mastectomy shall 
     ensure that, in a case in which a mastectomy patient elects 
     breast reconstruction, coverage is provided for--
       ``(1) all stages of reconstruction of the breast on which 
     the mastectomy has been performed; and
       ``(2) surgery and reconstruction of the other breast to 
     produce a symmetrical appearance;

     in the manner determined by the attending physician and the 
     patient to be appropriate, and consistent with any fee 
     schedule contained in the plan.
       ``(c) Prohibition on Certain Modifications.--In 
     implementing the requirements of

[[Page S888]]

     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) or (b).
       ``(d) 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 any literature or 
     correspondence 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;
       ``(2) as part of any yearly informational packet sent to 
     the participant or beneficiary; or
       ``(3) not later than January 1, 1998;

     whichever is earlier.
       ``(e) 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 full coverage is provided for secondary 
     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 full 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.
       ``(f) 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 (e).''.
       (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 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 
     later of--
       (A) 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), or
       (B) January 1, 1998.

     For purposes of subparagraph (A), 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 3 of part B of title XXVII of the 
     Public Health Service Act (as added by section 605(a) of the 
     Newborn's and Mother's Health Protection Act of 1996) is 
     amended by adding at the end the following new section:

     ``SEC. 2752. REQUIRED COVERAGE FOR MINIMUM HOSPITAL STAY FOR 
                   MASTECTOMIES AND LYMPH NODE DISSECTIONS FOR THE 
                   TREATMENT OF BREAST CANCER AND SECONDARY 
                   CONSULTATIONS.

       ``The provisions of section 2706 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.--Chapter 100 of the Internal Revenue Code 
     of 1986 (relating to group health plan portability, access, 
     and renewability requirements) is amended by redesignating 
     sections 9804, 9805, and 9806 as sections 9805, 9806, and 
     9807, respectively, and by inserting after section 9803 the 
     following new section:

     ``SEC. 9804. REQUIRED COVERAGE FOR MINIMUM HOSPITAL STAY FOR 
                   MASTECTOMIES AND LYMPH NODE DISSECTIONS FOR THE 
                   TREATMENT OF BREAST CANCER, COVERAGE FOR 
                   RECONSTRUCTIVE SURGERY FOLLOWING MASTECTOMIES, 
                   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 
     coverage with respect to the treatment of breast cancer is 
     provided for a period of time as is determined by the 
     attending physician, in consultation with the patient, to be 
     medically appropriate following--
       ``(A) a mastectomy;
       ``(B) a lumpectomy; or
       ``(C) a lymph node dissection for the treatment of breast 
     cancer.
       ``(2) Exception.--Nothing in this section shall be 
     construed as requiring the provision of inpatient coverage if 
     the attending physician and patient determine that a shorter 
     period of hospital stay is medically appropriate.
       ``(b) Reconstructive Surgery.--A group health plan that 
     provides medical and surgical benefits with respect to a 
     mastectomy shall ensure that, in a case in which a mastectomy 
     patient elects breast reconstruction, coverage is provided 
     for--
       ``(1) all stages of reconstruction of the breast on which 
     the mastectomy has been performed; and
       ``(2) surgery and reconstruction of the other breast to 
     produce a symmetrical appearance;

     in the manner determined by the attending physician and the 
     patient to be appropriate, and consistent with any fee 
     schedule contained in the plan.
       ``(c) 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) or (b).
       ``(d) 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 any literature or 
     correspondence 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;
       ``(2) as part of any yearly informational packet sent to 
     the participant or beneficiary; or
       ``(3) not later than January 1, 1998;

     whichever is earlier.
       ``(e) 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 full coverage is provided for secondary 
     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 full 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.
       ``(f) 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

[[Page S889]]

     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 (e).''.
       (b) Conforming Amendments.--
       (1) Sections 9801(c)(1), 9805(b) (as redesignated by 
     subsection (a)), 9805(c) (as so redesignated), 
     4980D(c)(3)(B)(i)(I), 4980D(d)(3), and 4980D(f)(1) of such 
     Code are each amended by striking ``9805'' each place it 
     appears and inserting ``9806''.
       (2) The heading for subtitle K of such Code is amended to 
     read as follows:
``Subtitle K--Group Health Plan Portability, Access, Renewability, and 
                         Other Requirements''.
       (3) The heading for chapter 100 of such Code is amended to 
     read as follows:

``CHAPTER 100--GROUP HEALTH PLAN PORTABILITY, ACCESS, RENEWABILITY, AND 
                         OTHER REQUIREMENTS''.

       (4) Section 4980D(a) of such Code is amended by striking 
     ``and renewability'' and inserting ``renewability, and 
     other''.
       (c) Clerical Amendments.--
       (1) The table of contents for chapter 100 of such Code is 
     amended by redesignating the items relating to sections 9804, 
     9805, and 9806 as items relating to sections 9805, 9806, and 
     9807, and by inserting after the item relating to section 
     9803 the following new item:

``Sec. 9804. Required coverage for minimum hospital stay for 
              mastectomies and lymph node dissections for the treatment 
              of breast cancer, coverage for reconstructive surgery 
              following mastectomies, and coverage for secondary 
              consultations.''.

       (2) The item relating to subtitle K in the table of 
     subtitles for such Code is amended by striking ``and 
     renewability'' and inserting ``renewability, and other''.
       (3) The item relating to chapter 100 in the table of 
     chapters for subtitle K of such Code is amended by striking 
     ``and renewability'' and inserting ``renewability, and 
     other''.
       (d) 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 
     later of--
       (A) 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), or
       (B) January 1, 1998.

     For purposes of subparagraph (A), 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.

  Mrs. FEINSTEIN. Madam President, as cochair of the Senate Cancer 
Coalition, I am pleased today to join with Senator D'Amato in 
introducing S. 249, the Women's Health and Cancer Rights Act of 1997.


                                The Bill

  This bill does four things:
  For treatment of breast cancer, it requires insurance plans to allow 
physicians to determine the length of a patient's hospital stay 
according to medical necessity; and it requires health insurance plans 
to cover breast reconstruction following a mastectomy.
  For treatment of all cancers, it requires health insurance plans to 
cover second opinions by specialists whether the initial diagnosis is 
positive or negative; and it prohibits insurance plans from financially 
penalizing or rewarding a physician for providing medically necessary 
care or for referring a patient for a second opinion


                          Two California Cases

  I have received two letters from constituents describing firsthand 
their treatment by insurance companies in having a mastectomy.
  Nancy Couchot, age 60, of Newark, CA, wrote me that she had a 
modified radical mastectomy on November 4, 1996, at 11:30 a.m. and was 
released by 4:30 p.m. She could not walk and the hospital staff did not 
help her ``even walk to the bathroom.'' She says, ``Any woman, under 
these circumstances, should be able to opt for an overnight stay to 
receive professional help and strong pain relief.''
  Victoria Berck, of Los Angeles, wrote that she had a mastectomy and 
lymph node removal at 7:30 a.m. on November 13, 1996, and was released 
from the hospital 7 hours later, at 2:30 p.m. Ms. Berck was given 
instructions on how to empty two drains attached to her body and sent 
home. She concludes, ``No civilized country in the world has mastectomy 
as an outpatient procedure.''
  These are but two examples of what, unfortunately, is becoming a 
national nightmare--insurance plans interfering with professional 
medical judgment and refusing to cover hospital stays of mastectomy 
patients.


                           Need for the Bill

  Increasingly, insurance companies are dropping and reducing inpatient 
hospital coverage of mastectomies. This is beyond the pale. It is 
unconscionable.
  The Wall Street Journal on November 6 reported that ``some health 
maintenance organizations are creating an uproar by ordering that 
mastectomies be performed on an outpatient basis. At a growing number 
of HMOs, surgeons must document ``medical necessity'' to justify even a 
one-night hospital admission.''
  In 1997, over 184,000 women--or 1 in every 8 American women--will be 
diagnosed with invasive breast cancer and 44,300 women will die from 
breast cancer; 2.6 million American women are living with breast cancer 
today. In my State, 20,000 women will be diagnosed with breast cancer 
and 5,000 will die or one every 27 minutes. San Francisco has among the 
highest incidence rates of breast cancer in the world.
  After a mastectomy, patients must cope with pain from the surgery, 
with psychological loss--the trauma of an amputation--and with drainage 
tubes. These patients need medical care from trained professionals, 
medical care that they cannot provide themselves at home.
  In the last 10 years, the length of overnight hospital stays for 
mastectomies has declined from 4 to 6 days to 2 to 3 days to, in some 
cases, no days. With the average cost of one day in the hospital at 
$930, if insurance plans refuse to cover a hospital stay, patients are 
forced to go home.


                         Breast Reconstruction

  Insurance plans also refuse to cover breast reconstruction. Our bill 
requires coverage. Breast reconstruction is an important followup part 
of breast cancer treatment and recovery. One study found that 84 
percent of patients were denied insurance coverage for reconstruction 
of the removed breast. Commendably, my State has passed a law requiring 
coverage of breast reconstruction after a mastectomy. However, we need 
a national standard, covering all insurance policies.


                        Second Opinions Covered

  Another important feature of our bill is insurance coverage of second 
opinions for all cancers. The news of possible cancer is traumatic. It 
is a dreaded fear that we all live with daily. For this life-
threatening disease for which there is no cure, more information is 
better than less. Expert advice is needed to make all-important 
decisions. I believe it is reasonable to encourage people to have a 
second consultation with a specialist, by requiring insurance plans to 
cover second opinions.
  Patients often need specialty care. A December 1996 study reported in 
the New England Journal of Medicine found that specialty care improves 
the outcome of heart attack patients. This should come as no surprise. 
Specialists are knowledgeable about their field. A California doctor 
pointed out that nonspecialists may order a ``battery of unnecessary 
and sometimes invasive and risky examinations'' for patients. Thus, 
incentives that discourage the use of specialists or referrals to 
specialists, can end up costing the insurance plan more--instead of 
saving money.


                        No Financial Incentives

  Finally, our bill prohibits insurance plans from including financial 
or other incentives to influence the care a doctor provides, similar to 
a law passed by the California legislature last year. Many physicians 
have complained that insurance plans include financial bonuses or other 
incentives for cutting patient visits or for not referring patients to 
specialists. Our bill bans financial incentives linked to how a doctor 
provides care. Our intent is to restore medical decisionmaking to 
health care.

[[Page S890]]

  For example, a California physician wrote me, ``Financial incentives 
under managed care plans often remove access to pediatric specialty 
care.'' A June 1995 report in the Journal of the National Cancer 
Institute cited the suit filed by the husband of a 34-year-old 
California woman who died from colon cancer, claiming that HMO 
incentives encouraged her physicians not to order additional tests that 
could have saved her life.
  Our bill tries to restore professional medical decisionmaking to 
medical providers, those whom we trust to take care of us. It should 
not take an act of Congress to guarantee good health care, but 
unfortunately that is where we are today.
  I hope my colleagues will join us in enacting this bill, an important 
protection for millions of Americans who face the fear and the reality 
of cancer every day.
                                 ______