[Congressional Record Volume 145, Number 46 (Tuesday, March 23, 1999)]
[Senate]
[Pages S3130-S3133]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DASCHLE (for himself, Mr. Inouye, Mr. Lautenberg, Mr. 
        Cleland, Mr. Johnson, Ms.

[[Page S3131]]

        Mikulski, Mr. Sarbanes, Mrs. Murray, and Mr. Hollings):
  S. 681. A bill to amend the Public Health Service Act and Employee 
Retirement Income Security Act of 1974 to require that group and 
individual health insurance coverage and group health plans provide 
coverage for a minimum hospital stay for mastectomies and lymph node 
dissections performed for the treatment of breast cancer, to the 
Committee on Health, Education, Labor, and Pensions.


                  breast cancer patient protection act

  Mr. DASCHLE. Mr. President, today I am introducing the Breast Cancer 
Patient Protection Act of 1999, which requires health insurance plans 
to provide coverage for a minimum hospital stay for mastectomies and 
lymph node dissections performed to treat breast cancer.
  This bill would prevent insurance companies and health maintenance 
organizations (HMOs) from forcing women to leave the hospital 
prematurely following a mastectomy or lymph node dissection or to have 
these treatments on an outpatient basis. Insurance company accountants 
should not make medical decisions without considering a doctor's 
judgments or a patient's needs. This legislation is part of my ongoing 
effort to protect patients and require that insurance companies deliver 
necessary, promised coverage. The Patients' Bill of Rights Act, S.6, 
also addresses these types of abuses, while providing a range of other 
important protections.
  The Breast Cancer Patient Protection Act would guarantee women at 
least 48 hours of inpatient care following a mastectomy and at least 24 
hours following lymph node dissection. These standards were designed in 
consultation with surgeons who specialize in this area and reflect the 
minimum amount of inpatient care necessary following these procedures. 
Patients, in consultation with their physicians, would be able to leave 
the hospital earlier if their situation warrants. The bottom line is 
still that insurers should allow coverage for the time necessary to 
ensure a proper recovery.
  Over the last several years, the average length of hospitalization 
following a mastectomy has fallen from 4-6 to 2-3 days. Patients 
undergoing lymph node dissections in the past were hospitalized for 2-3 
days. While some of the reductions in length of care may be the result 
of better medical practices, hospitalization is still critical for pain 
control, to manage fluid drainage, and to provide support and 
reassurance for women who have just undergone major surgery.
  Nevertheless, some patients have been told that their health 
maintenance organization (HMO) will cover their major surgery only on 
an outpatient basis. These determinations have been made on the basis 
of studies by their own actuarial consulting firms. However, both 
American College of Surgeons and the American Medical Association have 
concluded that inpatient stays are recommended in many cases. Women 
suffering from breast cancer deserve to know that their insurance will 
cover care based on their medical needs rather than the coverage 
recommendations made by HMO actuaries.
  My bill is a companion to H.R. 116, which was introduced in the House 
of Representatives by Congresswoman DeLauro. I would like to express 
appreciation to Congresswoman DeLauro, and to Senators Feinstein, 
Mikulski and Murray, for their tireless efforts on behalf of breast 
cancer patients. All have been invaluable leaders who have inspired and 
challenged us to address the very real need for breast cancer treatment 
reform.
  As we discuss the importance of ensuring quality care for breast 
cancer sufferers who have health insurance, it is also important to 
note that many women in the United States must fight this life-
threatening disease without any health insurance at all. The Centers 
for Disease Control (CDC) funds breast and cervical cancer screening--
in South Dakota, 1300 low-income women have been screened during the 
past 18 months--but there is no funding for actual treatment when that 
screening detects cancer. While the CDC effort is a critical part of 
the fight against cancer, it is ironic that those women who test 
positive for breast and cervical cancer may have no way to pay for the 
treatment they need.
  With one in eight women expected to develop breast cancer, it is 
increasingly likely that all of our families will be affected by this 
devastating disease in some way. In South Dakota, 500 women will be 
diagnosed with, and 100 will die of, breast cancer in the next 12 
months. Let us take this small step to ensure the experience is not 
complicated by insecurity and confusion over health insurance coverage. 
Let us put critical health care decisions back in the hands of breast 
cancer patients and their physicians.
  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 printed in the 
Record, as follows:

                                 S. 681

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Breast Cancer Patient 
     Protection Act of 1999''.

     SEC. 2. COVERAGE OF MINIMUM HOSPITAL STAY FOR CERTAIN BREAST 
                   CANCER TREATMENT.

       (a) Group Health Plans.--
       (1) Public health service act amendments.--
       (A) In general.--Subpart 2 of part A of title XXVII of the 
     Public Health Service Act is amended by adding at the end the 
     following new section:

     ``SEC. 2707. STANDARDS RELATING TO BENEFITS FOR CERTAIN 
                   BREAST CANCER TREATMENT.

       ``(a) Requirements for Minimum Hospital Stay Following 
     Mastectomy or Lymph Node Dissection.--
       ``(1) In general.--A group health plan, and a health 
     insurance issuer offering group health insurance coverage, 
     may not--
       ``(A) except as provided in paragraph (2)--
       ``(i) restrict benefits for any hospital length of stay in 
     connection with a mastectomy for the treatment of breast 
     cancer to less than 48 hours, or
       ``(ii) restrict benefits for any hospital length of stay in 
     connection with a lymph node dissection for the treatment of 
     breast cancer to less than 24 hours, or
       ``(B) require that a provider obtain authorization from the 
     plan or the issuer for prescribing any length of stay 
     required under subparagraph (A) (without regard to paragraph 
     (2)).
       ``(2) Exception.--Paragraph (1)(A) shall not apply in 
     connection with any group health plan or health insurance 
     issuer in any case in which the decision to discharge the 
     woman involved prior to the expiration of the minimum length 
     of stay otherwise required under paragraph (1)(A) is made by 
     an attending provider in consultation with the woman.
       ``(b) Prohibitions.--A group health plan, and a health 
     insurance issuer offering group health insurance coverage in 
     connection with a group health plan, may not--
       ``(1) deny to a woman eligibility, or continued 
     eligibility, to enroll or to renew coverage under the terms 
     of the plan, solely for the purpose of avoiding the 
     requirements of this section;
       ``(2) provide monetary payments or rebates to women to 
     encourage such women to accept less than the minimum 
     protections available under this section;
       ``(3) penalize or otherwise reduce or limit the 
     reimbursement of an attending provider because such provider 
     provided care to an individual participant or beneficiary in 
     accordance with this section;
       ``(4) provide incentives (monetary or otherwise) to an 
     attending provider to induce such provider to provide care to 
     an individual participant or beneficiary in a manner 
     inconsistent with this section; or
       ``(5) subject to subsection (c)(3), restrict benefits for 
     any portion of a period within a hospital length of stay 
     required under subsection (a) in a manner which is less 
     favorable than the benefits provided for any preceding 
     portion of such stay.
       ``(c) Rules of Construction.--
       ``(1) Nothing in this section shall be construed to require 
     a woman who is a participant or beneficiary--
       ``(A) to undergo a mastectomy or lymph node dissection in a 
     hospital; or
       ``(B) to stay in the hospital for a fixed period of time 
     following a mastectomy or lymph node dissection.
       ``(2) This section shall not apply with respect to any 
     group health plan, or any group health insurance coverage 
     offered by a health insurance issuer, which does not provide 
     benefits for hospital lengths of stay in connection with a 
     mastectomy or lymph node dissection for the treatment of 
     breast cancer.
       ``(3) Nothing in this section shall be construed as 
     preventing a group health plan or issuer from imposing 
     deductibles, coinsurance, or other cost-sharing in relation 
     to benefits for hospital lengths of stay in connection with a 
     mastectomy or lymph node dissection for the treatment of 
     breast cancer under the plan (or under health insurance 
     coverage offered in connection with a group health plan), 
     except that such coinsurance or

[[Page S3132]]

     other cost-sharing for any portion of a period within a 
     hospital length of stay required under subsection (a) may not 
     be greater than such coinsurance or cost-sharing for any 
     preceding portion of such stay.
       ``(d) Notice.--A group health plan under this part shall 
     comply with the notice requirement under section 713(d) of 
     the Employee Retirement Income Security Act of 1974 with 
     respect to the requirements of this section as if such 
     section applied to such plan.
       ``(e) Level and Type of Reimbursements.--Nothing in this 
     section shall be construed to prevent a group health plan or 
     a health insurance issuer offering group health insurance 
     coverage from negotiating the level and type of reimbursement 
     with a provider for care provided in accordance with this 
     section.
       ``(f) Preemption; Exception for Health Insurance Coverage 
     in Certain States.--
       ``(1) In general.--The requirements of this section shall 
     not apply with respect to health insurance coverage if there 
     is a State law (as defined in section 2723(d)(1)) for a State 
     that regulates such coverage that is described in any of the 
     following subparagraphs:
       ``(A) Such State law requires such coverage to provide for 
     at least a 48-hour hospital length of stay following a 
     mastectomy performed for treatment of breast cancer and at 
     least a 24-hour hospital length of stay following a lymph 
     node dissection for treatment of breast cancer.
       ``(B) Such State law requires, in connection with such 
     coverage for surgical treatment of breast cancer, that the 
     hospital length of stay for such care is left to the decision 
     of (or required to be made by) the attending provider in 
     consultation with the woman involved.
       ``(2) Construction.--Section 2723(a)(1) shall not be 
     construed as superseding a State law described in paragraph 
     (1).''.
       (B) Conforming amendment.--Section 2723(c) of the Public 
     Health Service Act (42 U.S.C. 300gg-23(c)) is amended by 
     striking ``section 2704'' and inserting ``sections 2704 and 
     2707''.
       (2) ERISA amendments.--
       (A) In general.--Subpart B of part 7 of subtitle B of title 
     I of the Employee Retirement Income Security Act of 1974 is 
     amended by adding at the end the following new section:

     ``SEC. 714. STANDARDS RELATING TO BENEFITS FOR CERTAIN BREAST 
                   CANCER TREATMENT.

       ``(a) Requirements for Minimum Hospital Stay Following 
     Mastectomy or Lymph Node Dissection.--
       ``(1) In general.--A group health plan, and a health 
     insurance issuer offering group health insurance coverage, 
     may not--
       ``(A) except as provided in paragraph (2)--
       ``(i) restrict benefits for any hospital length of stay in 
     connection with a mastectomy for the treatment of breast 
     cancer to less than 48 hours, or
       ``(ii) restrict benefits for any hospital length of stay in 
     connection with a lymph node dissection for the treatment of 
     breast cancer to less than 24 hours, or
       ``(B) require that a provider obtain authorization from the 
     plan or the issuer for prescribing any length of stay 
     required under subparagraph (A) (without regard to paragraph 
     (2)).
       ``(2) Exception.--Paragraph (1)(A) shall not apply in 
     connection with any group health plan or health insurance 
     issuer in any case in which the decision to discharge the 
     woman involved prior to the expiration of the minimum length 
     of stay otherwise required under paragraph (1)(A) is made by 
     an attending provider in consultation with the woman.
       ``(b) Prohibitions.--A group health plan, and a health 
     insurance issuer offering group health insurance coverage in 
     connection with a group health plan, may not--
       ``(1) deny to a woman eligibility, or continued 
     eligibility, to enroll or to renew coverage under the terms 
     of the plan, solely for the purpose of avoiding the 
     requirements of this section;
       ``(2) provide monetary payments or rebates to women to 
     encourage such women to accept less than the minimum 
     protections available under this section;
       ``(3) penalize or otherwise reduce or limit the 
     reimbursement of an attending provider because such provider 
     provided care to an individual participant or beneficiary in 
     accordance with this section;
       ``(4) provide incentives (monetary or otherwise) to an 
     attending provider to induce such provider to provide care to 
     an individual participant or beneficiary in a manner 
     inconsistent with this section; or
       ``(5) subject to subsection (c)(3), restrict benefits for 
     any portion of a period within a hospital length of stay 
     required under subsection (a) in a manner which is less 
     favorable than the benefits provided for any preceding 
     portion of such stay.
       ``(c) Rules of Construction.--
       ``(1) Nothing in this section shall be construed to require 
     a woman who is a participant or beneficiary--
       ``(A) to undergo a mastectomy or lymph node dissection in a 
     hospital; or
       ``(B) to stay in the hospital for a fixed period of time 
     following a mastectomy or lymph node dissection.
       ``(2) This section shall not apply with respect to any 
     group health plan, or any group health insurance coverage 
     offered by a health insurance issuer, which does not provide 
     benefits for hospital lengths of stay in connection with a 
     mastectomy or lymph node dissection for the treatment of 
     breast cancer.
       ``(3) Nothing in this section shall be construed as 
     preventing a group health plan or issuer from imposing 
     deductibles, coinsurance, or other cost-sharing in relation 
     to benefits for hospital lengths of stay in connection with a 
     mastectomy or lymph node dissection for the treatment of 
     breast cancer under the plan (or under health insurance 
     coverage offered in connection with a group health plan), 
     except that such coinsurance or other cost-sharing for any 
     portion of a period within a hospital length of stay required 
     under subsection (a) may not be greater than such coinsurance 
     or cost-sharing for any preceding portion of such stay.
       ``(d) Notice Under Group Health Plan.--The imposition of 
     the requirements of this section shall be treated as a 
     material modification in the terms of the plan described in 
     section 102(a)(1), for purposes of assuring notice of such 
     requirements under the plan; except that the summary 
     description required to be provided under the last sentence 
     of section 104(b)(1) with respect to such modification shall 
     be provided by not later than 60 days after the first day of 
     the first plan year in which such requirements apply.
       ``(e) Level and Type of Reimbursements.--Nothing in this 
     section shall be construed to prevent a group health plan or 
     a health insurance issuer offering group health insurance 
     coverage from negotiating the level and type of reimbursement 
     with a provider for care provided in accordance with this 
     section.
       ``(f) Preemption; Exception for Health Insurance Coverage 
     in Certain States.--
       ``(1) In general.--The requirements of this section shall 
     not apply with respect to health insurance coverage if there 
     is a State law (as defined in section 731(d)(1)) for a State 
     that regulates such coverage that is described in any of the 
     following subparagraphs:
       ``(A) Such State law requires such coverage to provide for 
     at least a 48-hour hospital length of stay following a 
     mastectomy performed for treatment of breast cancer and at 
     least a 24-hour hospital length of stay following a lymph 
     node dissection for treatment of breast cancer.
       ``(B) Such State law requires, in connection with such 
     coverage for surgical treatment of breast cancer, that the 
     hospital length of stay for such care is left to the decision 
     of (or required to be made by) the attending provider in 
     consultation with the woman involved.
       ``(2) Construction.--Section 731(a)(1) shall not be 
     construed as superseding a State law described in paragraph 
     (1).''.
       (B) Conforming amendment.--
       (i) Section 731(c) of the Employee Retirement Income 
     Security Act of 1974 (29 U.S.C. 1191(c)), as amended by 
     section 603(b)(1) of Public Law 104-204, is amended by 
     striking ``section 711'' and inserting ``sections 711 and 
     714''.
       (ii) Section 732(a) of the Employee Retirement Income 
     Security Act of 1974 (29 U.S.C. 1191a(a)), as amended by 
     section 603(b)(2) of Public Law 104-204, is amended by 
     striking ``section 711'' and inserting ``sections 711 and 
     714''.
       (C) Table of contents.--The table of contents in section 1 
     of the Employee Retirement Income Security Act of 1974 is 
     amended by inserting after the item relating to section 713 
     the following new item:

``Sec. 714. Standards relating to benefits for certain breast cancer 
              treatment.''.
       (b) Individual Health Insurance.--
       (1) In general.--Part B of title XXVII of the Public Health 
     Service Act is amended by inserting after section 2752 the 
     following new section:

     ``SEC. 2753. STANDARDS RELATING TO BENEFITS FOR CERTAIN 
                   BREAST CANCER TREATMENT.

       ``(a) In General.--The provisions of section 2707 (other 
     than subsection (d)) shall apply to health insurance coverage 
     offered 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 connection with a 
     group health plan in the small or large group market.
       ``(b) Notice.--A health insurance issuer under this part 
     shall comply with the notice requirement under section 714(d) 
     of the Employee Retirement Income Security Act of 1974 with 
     respect to the requirements referred to in subsection (a) as 
     if such section applied to such issuer and such issuer were a 
     group health plan.
       ``(c) Preemption; Exception for Health Insurance Coverage 
     in Certain States.--
       ``(1) In general.--The requirements of this section shall 
     not apply with respect to health insurance coverage if there 
     is a State law (as defined in section 2723(d)(1)) for a State 
     that regulates such coverage that is described in any of the 
     following subparagraphs:
       ``(A) Such State law requires such coverage to provide for 
     at least a 48-hour hospital length of stay following a 
     mastectomy performed for treatment of breast cancer and at 
     least a 24-hour hospital length of stay following a lymph 
     node dissection for treatment of breast cancer.
       ``(B) Such State law requires, in connection with such 
     coverage for surgical treatment of breast cancer, that the 
     hospital

[[Page S3133]]

     length of stay for such care is left to the decision of (or 
     required to be made by) the attending provider in 
     consultation with the woman involved.
       ``(2) Construction.--Section 2762(a) shall not be construed 
     as superseding a State law described in paragraph (1).''.
       (2) Conforming amendment.--Section 2762(b)(2) of the Public 
     Health Service Act (42 U.S.C. 300gg-62(b)(2)), as added by 
     section 605(b)(3)(B) of Public Law 104-204, is amended by 
     striking ``section 2751'' and inserting ``sections 2751 and 
     2753''.
       (c) Effective Dates.--
       (1) Group health insurance.--The amendments made by 
     subsection (a) shall apply with respect to group health plans 
     for plan years beginning on or after January 1, 2000.
       (2) Individual health insurance.--The amendment made by 
     subsection (b) shall apply with respect to health insurance 
     coverage offered, sold, issued, renewed, in effect, or 
     operated in the individual market on or after such date.
                                 ______