[Congressional Record Volume 145, Number 99 (Wednesday, July 14, 1999)]
[Senate]
[Pages S8522-S8527]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  PATIENTS' BILL OF RIGHTS ACT OF 1999

                                 ______
                                 

                BINGAMAN (AND OTHERS) AMENDMENT NO. 1245

  Mr. KENNEDY (for Mr. Bingaman (for himself, Mr. Harkin, Mr. Dodd, 
Mrs. Murray, Mr. Reid, Mr. Edwards, Mrs. Boxer, Mr. Durbin, Mr. Graham, 
Mr. Kennedy, Mr. Daschle, Mr. Feingold, Mr. Rockefeller, Mrs. 
Feinstein, Mr. Reed, and Mr. Kerry)) proposed an amendment to amendment 
No. 1243 proposed by Ms. Collins to the bill, S. 1344, supra; as 
follows:

       At the appropriate place, insert the following:

     SEC. __. ACCESS TO SPECIALTY CARE.

       (a) Specialty Care for Covered Services.--

[[Page S8523]]

       (1) In general.--If--
       (A) an individual is a participant or beneficiary under a 
     group health plan or an enrollee under group health insurance 
     coverage offered by a health insurance issuer,
       (B) the individual has a condition or disease of sufficient 
     seriousness and complexity to require treatment by a 
     specialist, and
       (C) benefits for such treatment are provided under the plan 
     or coverage,
     the plan or issuer shall make or provide for a referral to a 
     specialist who is available and accessible to provide the 
     treatment for such condition or disease.
       (2) Specialist defined.--For purposes of this subsection, 
     the term ``specialist'' means, with respect to a condition, a 
     health care practitioner, facility, or center (such as a 
     center of excellence) that has adequate expertise through 
     appropriate training and experience (including, in the case 
     of a child, appropriate pediatric expertise) to provide high 
     quality care in treating the condition.
       (3) Care under referral.--A group health plan, or health 
     insurance issuer in connection with group health insurance 
     coverage, may require that the care provided to an individual 
     pursuant to such referral under paragraph (1) be--
       (A) pursuant to a treatment plan, only if the treatment 
     plan is developed by the specialist and approved by the plan 
     or issuer, in consultation with the designated primary care 
     provider or specialist and the individual (or the 
     individual's designee), and
       (B) in accordance with applicable quality assurance and 
     utilization review standards of the plan or issuer.

     Nothing in this subsection shall be construed as preventing 
     such a treatment plan for an individual from requiring a 
     specialist to provide the primary care provider with regular 
     updates on the specialty care provided, as well as all 
     necessary medical information.
       (4) Referrals to participating providers.--A group health 
     plan or health insurance issuer is not required under 
     paragraph (1) to provide for a referral to a specialist that 
     is not a participating provider, unless the plan or issuer 
     does not have an appropriate specialist that is available and 
     accessible to treat the individual's condition and that is a 
     participating provider with respect to such treatment.
       (5) Treatment of nonparticipating providers.--If a plan or 
     issuer refers an individual to a nonparticipating specialist 
     pursuant to paragraph (1), services provided pursuant to the 
     approved treatment plan (if any) shall be provided at no 
     additional cost to the individual beyond what the individual 
     would otherwise pay for services received by such a 
     specialist that is a participating provider.
       (b) Specialists as Care Coordinators.--
       (1) In general.--A group health plan, or a health insurance 
     issuer in connection with group health insurance coverage, 
     shall have a procedure by which an individual who is a 
     participant, beneficiary or enrollee and who has an ongoing 
     special condition (as defined in paragraph (3)) may receive a 
     referral to a specialist for such condition who shall be 
     responsible for and capable of providing and coordinating the 
     individual's primary and specialty care. If such an 
     individual's care would most appropriately be coordinated by 
     such a specialist, such plan or issuer shall refer the 
     individual to such specialist.
       (2) Treatment as care coordinator.--Such specialist shall 
     be permitted to treat the individual without a referral from 
     the individual's primary care provider and may authorize such 
     referrals, procedures, tests, and other medical services as 
     the individual's primary care provider would otherwise be 
     permitted to provide or authorize, subject to the terms of 
     the treatment plan (referred to in subsection (a)(3)(A)).
       (3) Ongoing special condition defined.--In this subsection, 
     the term ``special condition'' means a condition or disease 
     that--
       (A) is life-threatening, degenerative, or disabling, and
       (B) requires specialized medical care over a prolonged 
     period of time.
       (4) Terms of referral.--The provisions of paragraphs (3) 
     through (5) of subsection (a) apply with respect to referrals 
     under paragraph (1) of this subsection in the same manner as 
     they apply to referrals under subsection (a)(1).
       (c) Standing Referrals.--
       (1) In general.--A group health plan, or a health insurance 
     issuer in connection with group health insurance coverage, 
     shall have a procedure by which an individual who is a 
     participant, beneficiary or enrollee and who has a condition 
     that requires ongoing care from a specialist may receive a 
     standing referral to such specialist for treatment of such 
     condition. If the plan or issuer, or if the primary care 
     provider in consultation with the medical director of the 
     plan or issuer and the specialist (if any), determines that 
     such a standing referral is appropriate, the plan or issuer 
     shall make such a referral to such a specialist.
       (2) Terms of referral.--The provisions of paragraphs (3) 
     through (5) of subsection (a) apply with respect to referrals 
     under paragraph (1) of this subsection in the same manner as 
     they apply to referrals under subsection (a)(1).
       (d) Application of Section.--This section shall supersede 
     the provisions of section 104.
       (e) Review.--Failure to meet the requirements of this 
     section shall constitute an appealable decision under section 
     132(a)(2).
       (f) Plan Satisfaction of Certain Requirements.--Pursuant to 
     rules of the Secretary, if a health insurance issuer offers 
     health insurance coverage in connection with a group health 
     plan and takes an action in violation of any provision of 
     this subchapter, the group health plan shall not be liable 
     for such violation unless the plan caused such violation.
       (g) Nonapplication of Certain Provision.--Only for purposes 
     of applying the requirements of this section under section 
     714 of the Employee Retirement Income Security Act of 1974 
     (as added by section 301 of this Act), sections 2707 and 2753 
     of the Public Health Service Act (as added by sections 201 
     and 202 of this Act), and section 9813 of the Internal 
     Revenue Code of 1986 (as added by section 401 of this Act)--
       (1) section 2721(b)(2) of the Public Health Service Act and 
     section 9831(a)(1) of the Internal Revenue Code of 1986 shall 
     not apply to the provisions of this section; and
       (2) with respect to limited scope dental benefits, 
     subparagraph (A) of section 733(c)(2) of the Employee 
     Retirement Income Security Act of 1974, subparagraph (A) of 
     section 2791(c)(2) of the Public Health Service Act, and 
     subparagraph (A) of section 9832(c)(2) of the Internal 
     Revenue Code of 1986 shall not apply to the provisions of 
     this section.
       (h) No Impact on Social Security Trust Fund.--
       (1) In general.--Nothing in this section shall be construed 
     to alter or amend the Social Security Act (or any regulation 
     promulgated under that Act).
       (2) Transfers.--
       (A) Estimate of secretary.--The Secretary of the Treasury 
     shall annually estimate the impact that the enactment of this 
     section has on the income and balances of the trust funds 
     established under section 201 of the Social Security Act (42 
     U.S.C. 401).
       (B) Transfer of funds.--If, under subparagraph (A), the 
     Secretary of the Treasury estimates that the enactment of 
     this section has a negative impact on the income and balances 
     of the trust funds established under section 201 of the 
     Social Security Act (42 U.S.C. 401), the Secretary shall 
     transfer, not less frequently than quarterly, from the 
     general revenues of the Federal Government an amount 
     sufficient so as to ensure that the income and balances of 
     such trust funds are not reduced as a result of the enactment 
     of such section.
       (i) Limitation on actions.--
       (1) In general.--Except as provided for in paragraph (2), 
     no action may be brought under subsection (a)(1)(B), (a)(2), 
     or (a)(3) of section 502 of the Employee Retirement Income 
     Security Act of 1974 by a participant or beneficiary seeking 
     relief based on the application of any provision in this 
     section.
       (2) Permissible actions.--An action may be brought under 
     subsection (a)(1)(B), (a)(2), or (a)(3) of section 502 of the 
     Employee Retirement Income Security Act of 1974 by a 
     participant or beneficiary seeking relief based on the 
     application of this section to the individual circumstances 
     of that participant or beneficiary; except that--
       (A) such an action may not be brought or maintained as a 
     class action; and
       (B) in such an action relief may only provide for the 
     provision of (or payment for) benefits, items, or services 
     denied to the individual participant or beneficiary involved 
     (and for attorney's fees and the costs of the action, at the 
     discretion of the court) and shall not provide for any other 
     relief to the participant or beneficiary or for any relief to 
     any other person.
       (3) Rule of construction.--Nothing in this subsection shall 
     be construed as affecting any action brought by the 
     Secretary.
       (j) Effective Date.--The provisions of this section shall 
     apply to group health plans for plan years beginning after, 
     and to health insurance issuers for coverage offered or sold 
     after, October 1, 2000.
       (k) Information Requirements.--
       (1) Information from group health plans.--Section 1862(b) 
     of the Social Security Act (42 U.S.C. 1395y(b)) is amended by 
     adding at the end the following:
       ``(7) Information from group health plans.--
       ``(A) Provision of information by group health plans.--The 
     administrator of a group health plan subject to the 
     requirements of paragraph (1) shall provide to the Secretary 
     such of the information elements described in subparagraph 
     (C) as the Secretary specifies, and in such manner and at 
     such times as the Secretary may specify (but not more 
     frequently than 4 times per year), with respect to each 
     individual covered under the plan who is entitled to any 
     benefits under this title.
       ``(B) Provision of information by employers and employee 
     organizations.--An employer (or employee organization) that 
     maintains or participates in a group health plan subject to 
     the requirements of paragraph (1) shall provide to the 
     administrator of the plan such of the information elements 
     required to be provided under subparagraph (A), and in such 
     manner and at such times as the Secretary may specify, at a 
     frequency consistent with that required under subparagraph 
     (A) with respect to each individual described in subparagraph 
     (A) who is covered under the plan by reason of employment 
     with that employer or membership in the organization.
       ``(C) Information elements.--The information elements 
     described in this subparagraph are the following:
       ``(i) Elements concerning the individual.--

       ``(I) The individual's name.
       ``(II) The individual's date of birth.
       ``(III) The individual's sex.

[[Page S8524]]

       ``(IV) The individual's social security insurance number.
       ``(V) The number assigned by the Secretary to the 
     individual for claims under this title.
       ``(VI) The family relationship of the individual to the 
     person who has or had current or employment status with the 
     employer.

       ``(ii) Elements concerning the family member with current 
     or former employment status.--

       ``(I) The name of the person in the individual's family who 
     has current or former employment status with the employer.
       ``(II) That person's social security insurance number.
       ``(III) The number or other identifier assigned by the plan 
     to that person.
       ``(IV) The periods of coverage for that person under the 
     plan.

       ``(V) The employment status of that person (current or 
     former) during those periods of coverage.
       ``(VI) The classes (of that person's family members) 
     covered under the plan.

       ``(iii) Plan elements.--

       ``(I) The items and services covered under the plan.
       ``(II) The name and address to which claims under the plan 
     are to be sent.

       ``(iv) Elements concerning the employer.--

       ``(I) The employer's name.
       ``(II) The employer's address.
       ``(III) The employer identification number of the employer.

       ``(D) Use of identifiers.--The administrator of a group 
     health plan shall utilize a unique identifier for the plan in 
     providing information under subparagraph (A) and in other 
     transactions, as may be specified by the Secretary, related 
     to the provisions of this subsection. The Secretary may 
     provide to the administrator the unique identifier described 
     in the preceding sentence.
       ``(E) Penalty for noncompliance.--Any entity that knowingly 
     and willfully fails to comply with a requirement imposed by 
     the previous subparagraphs shall be subject to a civil money 
     penalty not to exceed $1,000 for each incident of such 
     failure. The provisions of section 1128A (other than 
     subsections (a) and (b)) shall apply to a civil money penalty 
     under the previous sentence in the same manner as those 
     provisions apply to a penalty or proceeding under section 
     1128A(a).''.
       (2) Effective date.--The amendment made by paragraph (1) 
     shall take effect 180 days after the date of the enactment of 
     this Act.
       (l) Modification to Foreign Tax Credit Carryback and 
     Carryover Periods.--
       (1) In general.--Section 904(c) of the Internal Revenue 
     Code of 1986 (relating to limitation on credit) is amended--
       (A) by striking ``in the second preceding taxable year,'', 
     and
       (B) by striking ``or fifth'' and inserting ``fifth, sixth, 
     or seventh''.
       (2) Effective date.--The amendment made by paragraph (1) 
     shall apply to credits arising in taxable years beginning 
     after December 31, 2001.
                                 ______
                                 

                    McCAIN AMENDMENTS NOS. 1246-1249

  (Ordered to lie on the table.)
  Mr. McCAIN submitted four amendments intended to be proposed by him 
to the bill, S. 1344, supra; as follows:

                           Amendment No. 1246

       At the appropriate place, insert the following:

     SEC. __. PERMISSIBILITY OF CIVIL ACTIONS.

       (a) In General.--Section 514 of the Employee Retirement 
     Income Security Act of 1974 (29 U.S.C. 1144) is amended by 
     adding at the end the following subsection:
       ``(e) Preemption Not To Apply to Certain Actions Arising 
     Out of Provision of Health Benefits.--
       ``(1) Non-preemption of certain causes of action.--
       ``(A) In general.--Except as provided in this subsection, 
     nothing in this title shall be construed to invalidate, 
     impair, or supersede any cause of action under State law to 
     recover damages resulting from personal injury or for 
     wrongful death against any person--
       ``(i) in connection with the provision of insurance, 
     administrative services, or medical services by such person 
     to or for a group health plan; or
       ``(ii) that arises out of the arrangement by such person 
     for the provision of such insurance, administrative services, 
     or medical services by other persons.
       ``(B) Requirements.--A participant or beneficiary may only 
     commence a civil action under subparagraph (A) if the 
     participant or beneficiary has participated in and completed 
     an external appeal with respect to the decision involved.
       ``(C) Damages.--In a civil action permitted under 
     subparagraph (B), the participant or beneficiary may only 
     seek compensatory damages.
       ``(D) Limitation on damages.--A group health plan shall not 
     be liable for any noneconomic damages in the case of a cause 
     of action brought under subparagraph (A) in excess of 
     $250,000.
       ``(2) Exception for employers and medical providers.--
       ``(A) Employers.--
       ``(i) In general.--Subject to clause (ii), paragraph (1) 
     does not authorize--

       ``(I) any cause of action against an employer maintaining 
     the group health plan or against an employee of such an 
     employer acting within the scope of employment, or
       ``(II) a right of recovery or indemnity by a person against 
     an employer (or such an employee) for damages assessed 
     against the person pursuant to a cause of action under 
     paragraph (1).

       ``(ii) Special rule.--Clause (i) shall not preclude any 
     cause of action described in paragraph (1) against an 
     employer (or against an employee of such an employer acting 
     within the scope of employment) if--

       ``(I) such action is based on the employer's (or 
     employee's) exercise of discretionary authority to make a 
     decision on a claim for benefits covered under the plan or 
     health insurance coverage in the case at issue; and
       ``(II) the exercise by such employer (or employee of such 
     authority) resulted in personal injury or wrongful death.

       ``(B) Medical providers.--Paragraph (1) does not authorize 
     any cause of action against a health care provider for 
     failure to provide a health care item or service where such 
     provider acted in good faith in relying upon a determination 
     by the group health plan involved to deny such item or 
     service and such denial results in injury or death.
       ``(3) Construction.--Nothing in this subsection shall be 
     construed as permitting a cause of action under State law for 
     the failure to provide an item or service which is 
     specifically excluded under the group health plan involved.
       ``(4) Definition.--In this subsection, the term `medical 
     provider' means a physician or other health care professional 
     providing health care services.''.
       (b) Effective Date.--The amendment made by subsection (a) 
     shall apply to acts and omissions occurring on or after the 
     date of the enactment of this Act from which a cause of 
     action arises.
                                  ____


                           Amendment No. 1247

       At the appropriate place, insert the following:

     SEC. __. COVERAGE OF MINOR CHILD'S CONGENITAL OR 
                   DEVELOPMENTAL DEFORMITY OR DISORDER.

       (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 (42 U.S.C. 300gg-4 et seq.), as 
     amended by section 201, is further amended by adding at the 
     end the following:

     ``SEC. 2708. STANDARDS RELATING TO BENEFITS FOR MINOR CHILD'S 
                   CONGENITAL OR DEVELOPMENTAL DEFORMITY OR 
                   DISORDER.

       ``(a) Requirements for Reconstructive Surgery.--
       ``(1) In general.--A group health plan, and a health 
     insurance issuer offering group health insurance coverage, 
     that provides coverage for surgical benefits shall provide 
     coverage for outpatient and inpatient diagnosis and treatment 
     of a minor child's congenital or developmental deformity, 
     disease, or injury. A minor child shall include any 
     individual through 21 years of age.
       ``(2) Requirements.--Any coverage provided under paragraph 
     (1) shall be subject to pre-authorization or pre-
     certification as required by the plan or issuer, and such 
     coverage shall include any surgical treatment which, in the 
     opinion of the treating physician, is medically necessary to 
     approximate a normal appearance.
       ``(3) Treatment defined.--
       ``(A) In general.--In this section, the term `treatment' 
     includes reconstructive surgical procedures (procedures that 
     are generally performed to improve function, but may also be 
     performed to approximate a normal appearance) that are 
     performed on abnormal structures of the body caused by 
     congenital defects, developmental abnormalities, trauma, 
     infection, tumors, or disease, including--
       ``(i) procedures that do not materially affect the function 
     of the body part being treated; and
       ``(ii) procedures for secondary conditions and follow-up 
     treatment.
       ``(B) Exception.--Such term does not include cosmetic 
     surgery performed to reshape normal structures of the body to 
     improve appearance or self-esteem.
       ``(b) Notice.--A group health plan under this part shall 
     comply with the notice requirement under section 713(b) 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.''.
       (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 
     2708''.
       (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 (29 
     U.S.C. 1185 et seq.), as amended by section 301, is further 
     amended by adding at the end the following:

     ``SEC. 715. STANDARDS RELATING TO BENEFITS FOR MINOR CHILD'S 
                   CONGENITAL OR DEVELOPMENTAL DEFORMITY OR 
                   DISORDER.

       ``(a) Requirements for Reconstructive Surgery.--
       ``(1) In general.--A group health plan, and a health 
     insurance issuer offering group health insurance coverage, 
     that provides coverage for surgical benefits shall provide 
     coverage for outpatient and inpatient diagnosis and treatment 
     of a minor child's congenital or developmental deformity, 
     disease,

[[Page S8525]]

     or injury. A minor child shall include any individual through 
     21 years of age.
       ``(2) Requirements.--Any coverage provided under paragraph 
     (1) shall be subject to pre-authorization or pre-
     certification as required by the plan or issuer, and such 
     coverage shall include any surgical treatment which, in the 
     opinion of the treating physician, is medically necessary to 
     approximate a normal appearance.
       ``(3) Treatment defined.--
       ``(A) In general.--In this section, the term `treatment' 
     includes reconstructive surgical procedures (procedures that 
     are generally performed to improve function, but may also be 
     performed to approximate a normal appearance) that are 
     performed on abnormal structures of the body caused by 
     congenital defects, developmental abnormalities, trauma, 
     infection, tumors, or disease, including--
       ``(i) procedures that do not materially affect the function 
     of the body part being treated; and
       ``(ii) procedures for secondary conditions and follow-up 
     treatment.
       ``(B) Exception.--Such term does not include cosmetic 
     surgery performed to reshape normal structures of the body to 
     improve appearance or self-esteem.
       ``(b) 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.''.
       (B) Conforming amendments.--
       (i) Section 731(c) of the Employee Retirement Income 
     Security Act of 1974 (29 U.S.C. 1191(c)) is amended by 
     striking ``section 711'' and inserting ``sections 711 and 
     715''.
       (ii) Section 732(a) of the Employee Retirement Income 
     Security Act of 1974 (29 U.S.C. 1191a(a)) is amended by 
     striking ``section 711'' and inserting ``sections 711 and 
     715''.
       (iii) The table of contents in section 1 of the Employee 
     Retirement Income Security Act of 1974 (29 U.S.C. 1001) is 
     amended by inserting after the item relating to section 714 
     the following new item:

``Sec. 715. Standards relating to benefits for minor child's congenital 
              or developmental deformity or disorder.''.
       (3) Internal revenue code amendments.--Subchapter B of 
     chapter 100 of the Internal Revenue Code of 1986, as amended 
     by section 401, is further amended--
       (A) in the table of sections, by inserting after the item 
     relating to section 9813 the following new item:

``Sec. 9814. Standards relating to benefits for minor child's 
              congenital or developmental deformity or disorder.''; and

       (B) by inserting after section 9812 the following:

     ``SEC. 9814. STANDARDS RELATING TO BENEFITS FOR MINOR CHILD'S 
                   CONGENITAL OR DEVELOPMENTAL DEFORMITY OR 
                   DISORDER.

       ``(a) Requirements for Reconstructive Surgery.--
       ``(1) In general.--A group health plan, and a health 
     insurance issuer offering group health insurance coverage, 
     that provides coverage for surgical benefits shall provide 
     coverage for outpatient and inpatient diagnosis and treatment 
     of a minor child's congenital or developmental deformity, 
     disease, or injury. A minor child shall include any 
     individual through 21 years of age.
       ``(2) Requirements.--Any coverage provided under paragraph 
     (1) shall be subject to pre-authorization or pre-
     certification as required by the plan or issuer, and such 
     coverage shall include any surgical treatment which, in the 
     opinion of the treating physician, is medically necessary to 
     approximate a normal appearance.
       ``(3) Treatment defined.--
       ``(A) In general.--In this section, the term `treatment' 
     includes reconstructive surgical procedures (procedures that 
     are generally performed to improve function, but may also be 
     performed to approximate a normal appearance) that are 
     performed on abnormal structures of the body caused by 
     congenital defects, developmental abnormalities, trauma, 
     infection, tumors, or disease, including--
       ``(i) procedures that do not materially affect the function 
     of the body part being treated; and
       ``(ii) procedures for secondary conditions and follow-up 
     treatment.
       ``(B) Exception.--Such term does not include cosmetic 
     surgery performed to reshape normal structures of the body to 
     improve appearance or self-esteem.''.
       (b) Individual Health Insurance.--
       (1) In general.--Part B of title XXVII of the Public Health 
     Service Act (42 U.S.C. 300gg-41 et seq.), as amended by 
     section 202, is further amended by inserting after section 
     2753 the following new section:

     ``SEC. 2754. STANDARDS RELATING TO BENEFITS FOR MINOR CHILD'S 
                   CONGENITAL OR DEVELOPMENTAL DEFORMITY OR 
                   DISORDER.

       ``(a) Requirements for Reconstructive Surgery.--
       ``(1) In general.--A group health plan, and a health 
     insurance issuer offering group health insurance coverage, 
     that provides coverage for surgical benefits shall provide 
     coverage for outpatient and inpatient diagnosis and treatment 
     of a minor child's congenital or developmental deformity, 
     disease, or injury. A minor child shall include any 
     individual through 21 years of age.
       ``(2) Requirements.--Any coverage provided under paragraph 
     (1) shall be subject to pre-authorization or pre-
     certification as required by the plan or issuer, and such 
     coverage shall include any surgical treatment which, in the 
     opinion of the treating physician, is medically necessary to 
     approximate a normal appearance.
       ``(3) Treatment defined.--
       ``(A) In general.--In this section, the term `treatment' 
     includes reconstructive surgical procedures (procedures that 
     are generally performed to improve function, but may also be 
     performed to approximate a normal appearance) that are 
     performed on abnormal structures of the body caused by 
     congenital defects, developmental abnormalities, trauma, 
     infection, tumors, or disease, including--
       ``(i) procedures that do not materially affect the function 
     of the body part being treated; and
       ``(ii) procedures for secondary conditions and follow-up 
     treatment.
       ``(B) Exception.--Such term does not include cosmetic 
     surgery performed to reshape normal structures of the body to 
     improve appearance or self-esteem.
       ``(b) Notice.--A health insurance issuer under this part 
     shall comply with the notice requirement under section 713(b) 
     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.''.
       (2) Conforming amendment.--Section 2762(b)(2) of the Public 
     Health Service Act (42 U.S.C. 300gg-62(b)(2)) is amended by 
     striking ``section 2751'' and inserting ``sections 2751 and 
     2754''.
       (c) Effective Dates.--
       (1) Group market.--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 market.--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.
       (d) Coordinated Regulations.--Section 104(1) of Health 
     Insurance Portability and Accountability Act of 1996 is 
     amended by striking ``this subtitle (and the amendments made 
     by this subtitle and section 401)'' and inserting ``the 
     provisions of part 7 of subtitle B of title I of the Employee 
     Retirement Income Security Act of 1974, the provisions of 
     parts A and C of title XXVII of the Public Health Service 
     Act, and chapter 100 of the Internal Revenue Code of 1986''.

 Mr. McCAIN. Mr. President, I am offering an amendment which 
would help one of our most vulnerable populations, our children, by 
addressing the growing problem of HMOs denying insurance coverage of 
reconstructive surgery for kids suffering from physical defects and 
deformities. This amendment would require medical plans to cover the 
medical procedures to reconstruct a child's appearance if they are born 
with abnormal structures of the body, including a cleft lip or palate.
  Today, approximately seven percent of American children are born with 
pediatric deformities and congenital defects such as cleft lip, cleft 
palate, missing external limbs, such as ears, and other facial 
deformities. Unfortunately, it has become commonplace for insurance 
companies to label these medical procedures as cosmetic surgery and 
deny coverage to help these children eradicate or reduce deformities 
and acquire a normal appearance.
  In fact, a recent survey of the American Society of Plastic and 
Reconstructive Surgeons indicated that over half of the plastic 
surgeons questioned have had a pediatric patient in the last two years 
who has been denied, or experienced tremendous difficulty in obtaining, 
insurance coverage for there surgical procedures.
  I find it disgraceful that many insurance companies claim that 
reconstructive procedures are not medically necessary and are therefor 
cosmetic. These companies claim that medical services restoring some 
semblance of a normal appearance are superfluous and performed merely 
for vanity or cosmetic purposes. Many of my colleagues may be wondering 
how such a ludicrous and cruel practice can occur when it seems obvious 
that these procedures are clearly reconstructive and not cosmetic in 
nature. While an insurance plan may attempt to claim that helping a 
child born without ears or with a cleft so severe it extends to her 
hairline is superfluous surgery, I adamantly disagree and am committed 
to stopping the abhorrent practice.
  The medical and developmental complications which arise from many of 
these conditions are tremendous. Speech impediments, hearing 
difficulties and dental problems are a few of

[[Page S8526]]

the physical side effects which may result from a child's physical 
deformity. In addition, the effect a child's deformities may have on 
their personal development, confidence, self-esteem and their future 
aspirations and achievements are often very far reaching.
  A healthy self image is vitally important to develop self esteem and 
confidence. How a person sees themselves, and how others see them, 
determines how the person feels about himself and defines whether he 
has the strength to resist unfortunate obstacles, including the 
taunting of peer and disengagement from school activities. As parents, 
we want our children to be armed with a healthy sense of self esteem 
and confidence. The best way to guarantee that happens is to help them 
develop a strong and health self image. While this is critical, we must 
be pragmatic and recognize that we live in a society which places a 
high value on physical beauty and often unfairly uses it as a 
measurement of a person's worth, ability or potential in society. While 
this is wrong and we must work together to instill self-worth in our 
children, it is unrealistic to not recognize the importance which is 
place on physical appearances in our world and the unfair obstacles 
which children born with deformities face if they are not provided 
access medical services which help them attain a normal physical 
appearance.
  Some of my colleagues may know that my daughter Bridget, whom Cindy 
and I adopted from Mother Theresa's orphanage in Bangladesh, was born 
with a severe cleft. We are fortunate to have had the means and 
opportunities to provide the expert medical care necessary to help 
Bridget physically and emotionally. However, we, too, encountered 
numerous obstacles and denials by our insurance providers who did not 
believe that Bridget's medical treatment was necessary. Fortunately, 
Cindy and I were able to provide Bridget access to the reconstructive 
services she needs, despite denials by our health plan. Unfortunately, 
most hard working American families are not so fortunate. This is not 
right and it is why I am offering this important amendment to assist 
all American children.
  I want to stress that this is not a new mandate which could cause 
health care premiums to escalate. What I am proposing simply prohibits 
plans from frivolously ruling that substantial, medically needed 
reconstructive surgery for children to obtain a relatively normal 
appearance is cosmetic, or denying reconstructive coverage which 
American families have purchases. I urge each of my colleagues to work 
with me on behalf of our children and ensure that they are afforded an 
opportunity to realize their full potential.

                           Amendment No. 1248

       At the appropriate place, insert the following:

     SEC. __. COVERAGE OF MINOR CHILD'S CONGENITAL OR 
                   DEVELOPMENTAL DEFORMITY OR DISORDER.

       (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 (42 U.S.C. 300gg-4 et seq.), as 
     amended by section 203(a), is further amended by adding at 
     the end the following:

     ``SEC. 2708. STANDARDS RELATING TO BENEFITS FOR MINOR CHILD'S 
                   CONGENITAL OR DEVELOPMENTAL DEFORMITY OR 
                   DISORDER.

       ``(a) Requirements for Reconstructive Surgery.--
       ``(1) In general.--A group health plan, and a health 
     insurance issuer offering group health insurance coverage, 
     that provides coverage for surgical benefits shall provide 
     coverage for outpatient and inpatient diagnosis and treatment 
     of a minor child's congenital or developmental deformity, 
     disease, or injury. A minor child shall include any 
     individual through 21 years of age.
       ``(2) Requirements.--Any coverage provided under paragraph 
     (1) shall be subject to pre-authorization or pre-
     certification as required by the plan or issuer, and such 
     coverage shall include any surgical treatment which, in the 
     opinion of the treating physician, is medically necessary to 
     approximate a normal appearance.
       ``(3) Treatment defined.--
       ``(A) In general.--In this section, the term `treatment' 
     includes reconstructive surgical procedures (procedures that 
     are generally performed to improve function, but may also be 
     performed to approximate a normal appearance) that are 
     performed on abnormal structures of the body caused by 
     congenital defects, developmental abnormalities, trauma, 
     infection, tumors, or disease, including--
       ``(i) procedures that do not materially affect the function 
     of the body part being treated; and
       ``(ii) procedures for secondary conditions and follow-up 
     treatment.
       ``(B) Exception.--Such term does not include cosmetic 
     surgery performed to reshape normal structures of the body to 
     improve appearance or self-esteem.
       ``(b) Notice.--A group health plan under this part shall 
     comply with the notice requirement under section 713(b) 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.''.
       (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 
     2708''.
       (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 (29 
     U.S.C. 1185 et seq.), as amended by section 111 and 202(a), 
     is further amended by adding at the end the following:

     ``SEC. 716. STANDARDS RELATING TO BENEFITS FOR MINOR CHILD'S 
                   CONGENITAL OR DEVELOPMENTAL DEFORMITY OR 
                   DISORDER.

       ``(a) Requirements for Reconstructive Surgery.--
       ``(1) In general.--A group health plan, and a health 
     insurance issuer offering group health insurance coverage, 
     that provides coverage for surgical benefits shall provide 
     coverage for outpatient and inpatient diagnosis and treatment 
     of a minor child's congenital or developmental deformity, 
     disease, or injury. A minor child shall include any 
     individual through 21 years of age.
       ``(2) Requirements.--Any coverage provided under paragraph 
     (1) shall be subject to pre-authorization or pre-
     certification as required by the plan or issuer, and such 
     coverage shall include any surgical treatment which, in the 
     opinion of the treating physician, is medically necessary to 
     approximate a normal appearance.
       ``(3) Treatment defined.--
       ``(A) In general.--In this section, the term `treatment' 
     includes reconstructive surgical procedures (procedures that 
     are generally performed to improve function, but may also be 
     performed to approximate a normal appearance) that are 
     performed on abnormal structures of the body caused by 
     congenital defects, developmental abnormalities, trauma, 
     infection, tumors, or disease, including--
       ``(i) procedures that do not materially affect the function 
     of the body part being treated; and
       ``(ii) procedures for secondary conditions and follow-up 
     treatment.
       ``(B) Exception.--Such term does not include cosmetic 
     surgery performed to reshape normal structures of the body to 
     improve appearance or self-esteem.
       ``(b) 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.''.
       (B) Conforming amendments.--
       (i) Section 731(c) of the Employee Retirement Income 
     Security Act of 1974 (29 U.S.C. 1191(c)) is amended by 
     striking ``section 711'' and inserting ``sections 711 and 
     716''.
       (ii) Section 732(a) of the Employee Retirement Income 
     Security Act of 1974 (29 U.S.C. 1191a(a)) is amended by 
     striking ``section 711'' and inserting ``sections 711 and 
     716''.
       (iii) The table of contents in section 1 of the Employee 
     Retirement Income Security Act of 1974 (29 U.S.C. 1001) is 
     amended by inserting after the item relating to section 715 
     the following new item:

``Sec. 716. Standards relating to benefits for minor child's congenital 
              or developmental deformity or disorder.''.
       (3) Internal revenue code amendments.--Subchapter B of 
     chapter 100 of the Internal Revenue Code of 1986, as amended 
     by section 204, is further amended--
       (A) in the table of sections, by inserting after the item 
     relating to section 9814 the following new item:

``Sec. 9815. Standards relating to benefits for minor child's 
              congenital or developmental deformity or disorder.''; and
       (B) by inserting after section 9814 the following:

     ``SEC. 9815. STANDARDS RELATING TO BENEFITS FOR MINOR CHILD'S 
                   CONGENITAL OR DEVELOPMENTAL DEFORMITY OR 
                   DISORDER.

       ``(a) Requirements for Reconstructive Surgery.--
       ``(1) In general.--A group health plan, and a health 
     insurance issuer offering group health insurance coverage, 
     that provides coverage for surgical benefits shall provide 
     coverage for outpatient and inpatient diagnosis and treatment 
     of a minor child's congenital or developmental deformity, 
     disease, or injury. A minor child shall include any 
     individual through 21 years of age.
       ``(2) Requirements.--Any coverage provided under paragraph 
     (1) shall be subject to pre-authorization or pre-
     certification as required by the plan or issuer, and such 
     coverage shall include any surgical treatment

[[Page S8527]]

     which, in the opinion of the treating physician, is medically 
     necessary to approximate a normal appearance.
       ``(3) Treatment defined.--
       ``(A) In general.--In this section, the term `treatment' 
     includes reconstructive surgical procedures (procedures that 
     are generally performed to improve function, but may also be 
     performed to approximate a normal appearance) that are 
     performed on abnormal structures of the body caused by 
     congenital defects, developmental abnormalities, trauma, 
     infection, tumors, or disease, including--
       ``(i) procedures that do not materially affect the function 
     of the body part being treated; and
       ``(ii) procedures for secondary conditions and follow-up 
     treatment.
       ``(B) Exception.--Such term does not include cosmetic 
     surgery performed to reshape normal structures of the body to 
     improve appearance or self-esteem.''.
       (b) Individual Health Insurance.--
       (1) In general.--Part B of title XXVII of the Public Health 
     Service Act (42 U.S.C. 300gg-41 et seq.), as amended by 
     section 203(b), is further amended by inserting after section 
     2753 the following new section:

     ``SEC. 2754. STANDARDS RELATING TO BENEFITS FOR MINOR CHILD'S 
                   CONGENITAL OR DEVELOPMENTAL DEFORMITY OR 
                   DISORDER.

       ``(a) Requirements for Reconstructive Surgery.--
       ``(1) In general.--A group health plan, and a health 
     insurance issuer offering group health insurance coverage, 
     that provides coverage for surgical benefits shall provide 
     coverage for outpatient and inpatient diagnosis and treatment 
     of a minor child's congenital or developmental deformity, 
     disease, or injury. A minor child shall include any 
     individual through 21 years of age.
       ``(2) Requirements.--Any coverage provided under paragraph 
     (1) shall be subject to pre-authorization or pre-
     certification as required by the plan or issuer, and such 
     coverage shall include any surgical treatment which, in the 
     opinion of the treating physician, is medically necessary to 
     approximate a normal appearance.
       ``(3) Treatment defined.--
       ``(A) In general.--In this section, the term `treatment' 
     includes reconstructive surgical procedures (procedures that 
     are generally performed to improve function, but may also be 
     performed to approximate a normal appearance) that are 
     performed on abnormal structures of the body caused by 
     congenital defects, developmental abnormalities, trauma, 
     infection, tumors, or disease, including--
       ``(i) procedures that do not materially affect the function 
     of the body part being treated; and
       ``(ii) procedures for secondary conditions and follow-up 
     treatment.
       ``(B) Exception.--Such term does not include cosmetic 
     surgery performed to reshape normal structures of the body to 
     improve appearance or self-esteem.
       ``(b) Notice.--A health insurance issuer under this part 
     shall comply with the notice requirement under section 713(b) 
     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.''.
       (2) Conforming amendment.--Section 2762(b)(2) of the Public 
     Health Service Act (42 U.S.C. 300gg-62(b)(2)) is amended by 
     striking ``section 2751'' and inserting ``sections 2751 and 
     2754''.
       (c) Effective Dates.--
       (1) Group market.--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 market.--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.
       (d) Coordinated Regulations.--Section 104(1) of Health 
     Insurance Portability and Accountability Act of 1996 is 
     amended by striking ``this subtitle (and the amendments made 
     by this subtitle and section 401)'' and inserting ``the 
     provisions of part 7 of subtitle B of title I of the Employee 
     Retirement Income Security Act of 1974, the provisions of 
     parts A and C of title XXVII of the Public Health Service 
     Act, and chapter 100 of the Internal Revenue Code of 1986''.
                                  ____


                           Amendment No. 1249

       Strike section 302 of the bill and insert the following:

     SEC. 302. PERMISSIBILITY OF CIVIL ACTIONS.

       (a) In General.--Section 514 of the Employee Retirement 
     Income Security Act of 1974 (29 U.S.C. 1144) is amended by 
     adding at the end the following subsection:
       ``(e) Preemption Not To Apply to Certain Actions Arising 
     Out of Provision of Health Benefits.--
       ``(1) Non-preemption of certain causes of action.--
       ``(A) In general.--Except as provided in this subsection, 
     nothing in this title shall be construed to invalidate, 
     impair, or supersede any cause of action under State law to 
     recover damages resulting from personal injury or for 
     wrongful death against any person--
       ``(i) in connection with the provision of insurance, 
     administrative services, or medical services by such person 
     to or for a group health plan; or
       ``(ii) that arises out of the arrangement by such person 
     for the provision of such insurance, administrative services, 
     or medical services by other persons.
       ``(B) Requirements.--A participant or beneficiary may only 
     commence a civil action under subparagraph (A) if the 
     participant or beneficiary has participated in and completed 
     an external appeal with respect to the decision involved.
       ``(C) Damages.--In a civil action permitted under 
     subparagraph (B), the participant or beneficiary may only 
     seek compensatory damages.
       ``(D) Limitation on damages.--A group health plan shall not 
     be liable for any noneconomic damages in the case of a cause 
     of action brought under subparagraph (A) in excess of 
     $250,000.
       ``(2) Exception for employers and medical providers.--
       ``(A) Employers.--
       ``(i) In general.--Subject to clause (ii), paragraph (1) 
     does not authorize--

       ``(I) any cause of action against an employer maintaining 
     the group health plan or against an employee of such an 
     employer acting within the scope of employment, or
       ``(II) a right of recovery or indemnity by a person against 
     an employer (or such an employee) for damages assessed 
     against the person pursuant to a cause of action under 
     paragraph (1).

       ``(ii) Special rule.--Clause (i) shall not preclude any 
     cause of action described in paragraph (1) against an 
     employer (or against an employee of such an employer acting 
     within the scope of employment) if--

       ``(I) such action is based on the employer's (or 
     employee's) exercise of discretionary authority to make a 
     decision on a claim for benefits covered under the plan or 
     health insurance coverage in the case at issue; and
       ``(II) the exercise by such employer (or employee of such 
     authority) resulted in personal injury or wrongful death.

       ``(B) Medical providers.--Paragraph (1) does not authorize 
     any cause of action against a health care provider for 
     failure to provide a health care item or service where such 
     provider acted in good faith in relying upon a determination 
     by the group health plan involved to deny such item or 
     service and such denial results in injury or death.
       ``(3) Construction.--Nothing in this subsection shall be 
     construed as permitting a cause of action under State law for 
     the failure to provide an item or service which is 
     specifically excluded under the group health plan involved.
       ``(4) Definition.--In this subsection, the term `medical 
     provider' means a physician or other health care professional 
     providing health care services.''.
       (b) Effective Date.--The amendment made by subsection (a) 
     shall apply to acts and omissions occurring on or after the 
     date of the enactment of this Act from which a cause of 
     action arises.

                          ____________________