[Congressional Record Volume 151, Number 62 (Thursday, May 12, 2005)]
[Senate]
[Pages S5103-S5105]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DeMINT:
  S. 1015. A bill to amend the Public Health Service Act to provide for 
cooperative governing of individual health insurance coverage offered 
in interstate commerce; to the Committee on Health, Education, Labor, 
and Pensions.
  Mr. DeMINT. Mr. President, I rise today to introduce The Health Care 
Choice Act of 2005, a bill that would help Americans afford health 
insurance.
  Approximately 45 million Americans lack health insurance. These 
uninsured Americans face significant hurdles in entering the insurance 
marketplace, including limited choices of insurers and inflexible 
benefit options. For most, the high cost of health insurance is the 
biggest impediment to getting coverage. In fact, nearly two-thirds of 
the uninsured are the working poor, and they cite the high cost of 
insurance as the primary barrier to accessing health coverage.
  The cost of insurance is often increased by excessive State 
regulations. These State mandates raise the cost of insurance which, in 
turn, increases the number of Americans who are priced out of the 
health insurance market.
  The Health Care Choice Act will allow consumers to shop for health 
insurance the same way they do for other insurance products--online, by 
mail, over the phone, or in consultation with an insurance agent in 
their hometown. The Act empowers consumers by giving them the ability 
to purchase an affordable health insurance policy with a range of 
options.
  Consumers will no longer be limited to picking only those policies 
that meet their state's regulations and mandated benefits. Instead, 
they can examine the wide array of insurance policies qualified in one 
State and offered for sale in multiple states. Consumers can choose the 
policy that best suits their needs, and their budget, without regard to 
State boundaries. Individuals looking for basic health insurance 
coverage can opt for a policy with few benefit mandates, and such a 
policy will be more affordable. On the other hand, consumers who have 
an interest in a particular benefit, such as infertility treatments, 
will be able to purchase a policy which includes that benefit.
  The Health Care Choice Act will help the uninsured find affordable 
health insurance, while also providing every American with more and 
better health insurance choices. The bill harnesses the power of the 
marketplace to allow Americans to tailor their insurance choices to 
their individual needs.
  I am grateful to Congressman Shadegg for introducing the Health Care 
Choice Act in the House today, and I urge my Senate colleagues to 
support this bill.
  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. 1015

       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 ``Health Care Choice Act of 
     2005''.

     SEC. 2. SPECIFICATION OF CONSTITUTIONAL AUTHORITY FOR 
                   ENACTMENT OF LAW.

       This Act is enacted pursuant to the power granted Congress 
     under article I, section 8, clause 3, of the United States 
     Constitution.

     SEC. 3. FINDINGS.

       Congress finds the following:
       (1) The application of numerous and significant variations 
     in State law impacts the ability of insurers to offer, and 
     individuals to obtain, affordable individual health insurance 
     coverage, thereby impeding commerce in individual health 
     insurance coverage.
       (2) Individual health insurance coverage is increasingly 
     offered through the Internet, other electronic means, and by 
     mail, all of which are inherently part of interstate 
     commerce.
       (3) In response to these issues, it is appropriate to 
     encourage increased efficiency in the offering of individual 
     health insurance coverage through a collaborative approach by 
     the States in regulating this coverage.
       (4) The establishment of risk-retention groups has provided 
     a successful model for the sale of insurance across State 
     lines, as the acts establishing those groups allow insurance 
     to be sold in multiple States but regulated by a single 
     State.

     SEC. 4. COOPERATIVE GOVERNING OF INDIVIDUAL HEALTH INSURANCE 
                   COVERAGE.

       (a) In General.--Title XXVII of the Public Health Service 
     Act (42 U.S.C. 300gg et seq.) is amended by adding at the end 
     the following new part:

``PART D--COOPERATIVE GOVERNING OF INDIVIDUAL HEALTH INSURANCE COVERAGE

     ``SEC. 2795. DEFINITIONS.

       ``In this part:
       ``(1) Primary state.--The term `primary State' means, with 
     respect to individual health insurance coverage offered by a 
     health insurance issuer, the State designated by the issuer 
     as the State whose covered laws shall govern the health 
     insurance issuer in the sale of such coverage under this 
     part. An issuer, with respect to a particular policy, may 
     only designate one such State as its primary State with 
     respect to all such coverage it offers. Such an issuer may 
     not change the designated primary State with respect to 
     individual health insurance coverage once the policy is 
     issued, except that such a change may be made upon renewal of 
     the policy. With respect to such designated State, the issuer 
     is deemed to be doing business in that State.
       ``(2) Secondary state.--The term `secondary State' means, 
     with respect to individual health insurance coverage offered 
     by a health insurance issuer, any State that is not the 
     primary State. In the case of a health insurance issuer that 
     is selling a policy in, or to a resident of, a secondary 
     State, the issuer is deemed to be doing business in that 
     secondary State.
       ``(3) Health insurance issuer.--The term `health insurance 
     issuer' has the meaning given such term in section 
     2791(b)(2), except that such an issuer must be licensed in 
     the primary State and be qualified to sell individual health 
     insurance coverage in that State.
       ``(4) Individual health insurance coverage.--The term 
     `individual health insurance coverage' means health insurance 
     coverage offered in the individual market, as defined in 
     section 2791(e)(1).
       ``(5) Applicable state authority.--The term `applicable 
     State authority' means, with respect to a health insurance 
     issuer in a State, the State insurance commissioner or 
     official or officials designated by the State to enforce the 
     requirements of this title for the State with respect to the 
     issuer.
       ``(6) Hazardous financial condition.--The term `hazardous 
     financial condition' means that, based on its present or 
     reasonably anticipated financial condition, a health 
     insurance issuer is unlikely to be able--
       ``(A) to meet obligations to policyholders with respect to 
     known claims and reasonably anticipated claims; or
       ``(B) to pay other obligations in the normal course of 
     business.
       ``(7) Covered laws.--The term `covered laws' means the 
     laws, rules, regulations, agreements, and orders governing 
     the insurance business pertaining to--
       ``(A) individual health insurance coverage issued by a 
     health insurance issuer;
       ``(B) the offer, sale, and issuance of individual health 
     insurance coverage to an individual; and
       ``(C) the provision to an individual in relation to 
     individual health insurance coverage of--
       ``(i) health care and insurance related services;
       ``(ii) management, operations, and investment activities of 
     a health insurance issuer; and
       ``(iii) loss control and claims administration for a health 
     insurance issuer with respect to liability for which the 
     issuer provides insurance.
       ``(8) State.--The term `State' means only the 50 States and 
     the District of Columbia.

[[Page S5104]]

       ``(9) Unfair claims settlement practices.--The term `unfair 
     claims settlement practices' means only the following 
     practices:
       ``(A) Knowingly misrepresenting to claimants and insured 
     individuals relevant facts or policy provisions relating to 
     coverage at issue.
       ``(B) Failing to acknowledge with reasonable promptness 
     pertinent communications with respect to claims arising under 
     policies.
       ``(C) Failing to adopt and implement reasonable standards 
     for the prompt investigation and settlement of claims arising 
     under policies.
       ``(D) Failing to effectuate prompt, fair, and equitable 
     settlement of claims submitted in which liability has become 
     reasonably clear.
       ``(E) Refusing to pay claims without conducting a 
     reasonable investigation.
       ``(F) Failing to affirm or deny coverage of claims within a 
     reasonable period of time after having completed an 
     investigation related to those claims.
       ``(10) Fraud and abuse.--The term `fraud and abuse' means 
     an act or omission committed by a person who, knowingly and 
     with intent to defraud, commits, or conceals any material 
     information concerning, one or more of the following:
       ``(A) Presenting, causing to be presented or preparing with 
     knowledge or belief that it will be presented to or by an 
     insurer, a reinsurer, broker or its agent, false information 
     as part of, in support of or concerning a fact material to 
     one or more of the following:
       ``(i) An application for the issuance or renewal of an 
     insurance policy or reinsurance contract.
       ``(ii) The rating of an insurance policy or reinsurance 
     contract.
       ``(iii) A claim for payment or benefit pursuant to an 
     insurance policy or reinsurance contract.
       ``(iv) Premiums paid on an insurance policy or reinsurance 
     contract.
       ``(v) Payments made in accordance with the terms of an 
     insurance policy or reinsurance contract.
       ``(vi) A document filed with the commissioner or the chief 
     insurance regulatory official of another jurisdiction.
       ``(vii) The financial condition of an insurer or reinsurer.
       ``(viii) The formation, acquisition, merger, 
     reconsolidation, dissolution or withdrawal from one or more 
     lines of insurance or reinsurance in all or part of a State 
     by an insurer or reinsurer.
       ``(ix) The issuance of written evidence of insurance.
       ``(x) The reinstatement of an insurance policy.
       ``(B) Solicitation or acceptance of new or renewal 
     insurance risks on behalf of an insurer reinsurer or other 
     person engaged in the business of insurance by a person who 
     knows or should know that the insurer or other person 
     responsible for the risk is insolvent at the time of the 
     transaction.
       ``(C) Transaction of the business of insurance in violation 
     of laws requiring a license, certificate of authority or 
     other legal authority for the transaction of the business of 
     insurance.
       ``(D) Attempt to commit, aiding or abetting in the 
     commission of, or conspiracy to commit the acts or omissions 
     specified in this paragraph.

     ``SEC. 2796. APPLICATION OF LAW.

       ``(a) In General.--The covered laws of the primary State 
     shall apply to individual health insurance coverage offered 
     by a health insurance issuer in the primary State and in any 
     secondary State, but only if the coverage and issuer comply 
     with the conditions of this section with respect to the 
     offering of coverage in any secondary State.
       ``(b) Exemptions From Covered Laws in a Secondary State.--
     Except as provided in this section, a health insurance issuer 
     with respect to its offer, sale, renewal, and issuance of 
     individual health insurance coverage in any secondary State 
     is exempt from any covered laws of the secondary State (and 
     any rules, regulations, agreements, or orders sought or 
     issued by such State under or related to such covered laws) 
     to the extent that such laws would--
       ``(1) make unlawful, or regulate, directly or indirectly, 
     the operation of the health insurance issuer operating in the 
     secondary State, except that any secondary State may require 
     such an issuer--
       ``(A) to pay, on a nondiscriminatory basis, applicable 
     premium and other taxes (including high risk pool 
     assessments) which are levied on insurers and surplus lines 
     insurers, brokers, or policyholders under the laws of the 
     State;
       ``(B) to register with and designate the State insurance 
     commissioner as its agent solely for the purpose of receiving 
     service of legal documents or process;
       ``(C) to submit to an examination of its financial 
     condition by the State insurance commissioner in any State in 
     which the issuer is doing business to determine the issuer's 
     financial condition, if--
       ``(i) the State insurance commissioner of the primary State 
     has not done an examination within the period recommended by 
     the National Association of Insurance Commissioners; and
       ``(ii) any such examination is conducted in accordance with 
     the examiners' handbook of the National Association of 
     Insurance Commissioners and is coordinated to avoid 
     unjustified duplication and unjustified repetition;
       ``(D) to comply with a lawful order issued--
       ``(i) in a delinquency proceeding commenced by the State 
     insurance commissioner if there has been a finding of 
     financial impairment under subparagraph (C); or
       ``(ii) in a voluntary dissolution proceeding;
       ``(E) to comply with an injunction issued by a court of 
     competent jurisdiction, upon a petition by the State 
     insurance commissioner alleging that the issuer is in 
     hazardous financial condition;
       ``(F) to participate, on a nondiscriminatory basis, in any 
     insurance insolvency guaranty association or similar 
     association to which a health insurance issuer in the State 
     is required to belong;
       ``(G) to comply with any State law regarding fraud and 
     abuse (as defined in section 2795(10)), except that if the 
     State seeks an injunction regarding the conduct described in 
     this subparagraph, such injunction must be obtained from a 
     court of competent jurisdiction; or
       ``(H) to comply with any State law regarding unfair claims 
     settlement practices (as defined in section 2795(9));
       ``(2) require any individual health insurance coverage 
     issued by the issuer to be countersigned by an insurance 
     agent or broker residing in that Secondary State; or
       ``(3) otherwise discriminate against the issuer issuing 
     insurance in both the primary State and in any secondary 
     State.
       ``(c) Clear and Conspicuous Disclosure.--A health insurance 
     issuer shall provide the following notice, in 12-point bold 
     type, in any insurance coverage offered in a secondary State 
     under this part by such a health insurance issuer and at 
     renewal of the policy, with the 5 blank spaces therein being 
     appropriately filled with the name of the health insurance 
     issuer, the name of primary State, the name of the secondary 
     State, the name of the secondary State, and the name of the 
     secondary State, respectively, for the coverage concerned:
     `This policy is issued by _____ and is governed by the laws 
     and regulations of the State of _____, and it has met all the 
     laws of that State as determined by that State's Department 
     of Insurance. This policy may be less expensive than others 
     because it is not subject to all of the insurance laws and 
     regulations of the State of _____, including coverage of some 
     services or benefits mandated by the law of the State of 
     _____. Additionally, this policy is not subject to all of the 
     consumer protection laws or restrictions on rate changes of 
     the State of _____. As with all insurance products, before 
     purchasing this policy, you should carefully review the 
     policy and determine what health care services the policy 
     covers and what benefits it provides, including any 
     exclusions, limitations, or conditions for such services or 
     benefits.'.
       ``(d) Prohibition on Certain Reclassifications and Premium 
     Increases.--
       ``(1) In general.--For purposes of this section, a health 
     insurance issuer that provides individual health insurance 
     coverage to an individual under this part in a primary or 
     secondary State may not upon renewal--
       ``(A) move or reclassify the individual insured under the 
     health insurance coverage from the class such individual is 
     in at the time of issue of the contract based on the health-
     status related factors of the individual; or
       ``(B) increase the premiums assessed the individual for 
     such coverage based on a health status-related factor or 
     change of a health status-related factor or the past or 
     prospective claim experience of the insured individual.
       ``(2) Construction.--Nothing in paragraph (1) shall be 
     construed to prohibit a health insurance issuer--
       ``(A) from terminating or discontinuing coverage or a class 
     of coverage in accordance with subsections (b) and (c) of 
     section 2742;
       ``(B) from raising premium rates for all policy holders 
     within a class based on claims experience;
       ``(C) from changing premiums or offering discounted 
     premiums to individuals who engage in wellness activities at 
     intervals prescribed by the issuer, if such premium changes 
     or incentives--
       ``(i) are disclosed to the consumer in the insurance 
     contract;
       ``(ii) are based on specific wellness activities that are 
     not applicable to all individuals; and
       ``(iii) are not obtainable by all individuals to whom 
     coverage is offered;
       ``(D) from reinstating lapsed coverage; or
       ``(E) from retroactively adjusting the rates charged an 
     individual insured individual if the initial rates were set 
     based on material misrepresentation by the individual at the 
     time of issue.
       ``(e) Prior Offering of Policy in Primary State.--A health 
     insurance issuer may not offer for sale individual health 
     insurance coverage in a secondary State unless that coverage 
     is currently offered for sale in the primary State.
       ``(f) Licensing of Agents or Brokers for Health Insurance 
     Issuers.--Any State may require that a person acting, or 
     offering to act, as an agent or broker for a health insurance 
     issuer with respect to the offering of individual health 
     insurance coverage obtain a license from that State, except 
     that a State many not impose any qualification or requirement 
     which discriminates against a nonresident agent or broker.
       ``(g) Documents for Submission to State Insurance 
     Commissioner.--Each health insurance issuer issuing 
     individual health insurance coverage in both primary and 
     secondary States shall submit--

[[Page S5105]]

       ``(1) to the insurance commissioner of each State in which 
     it intends to offer such coverage, before it may offer 
     individual health insurance coverage in such State--
       ``(A) a copy of the plan of operation or feasibility study 
     or any similar statement of the policy being offered and its 
     coverage (which shall include the name of its primary State 
     and its principal place of business);
       ``(B) written notice of any change in its designation of 
     its primary State; and
       ``(C) written notice from the issuer of the issuer's 
     compliance with all the laws of the primary State; and
       ``(2) to the insurance commissioner of each secondary State 
     in which it offers individual health insurance coverage, a 
     copy of the issuer's quarterly financial statement submitted 
     to the primary State, which statement shall be certified by 
     an independent public accountant and contain a statement of 
     opinion on loss and loss adjustment expense reserves made 
     by--
       ``(A) a member of the American Academy of Actuaries; or
       ``(B) a qualified loss reserve specialist.
       ``(h) Power of Courts To Enjoin Conduct.--Nothing in this 
     section shall be construed to affect the authority of any 
     Federal or State court to enjoin--
       ``(1) the solicitation or sale of individual health 
     insurance coverage by a health insurance issuer to any person 
     or group who is not eligible for such insurance; or
       ``(2) the solicitation or sale of individual health 
     insurance coverage by, or operation of, a health insurance 
     issuer that is in hazardous financial condition.
       ``(i) State Powers To Enforce State Laws.--
       ``(1) In general.--Subject to the provisions of subsection 
     (b)(1)(G) (relating to injunctions) and paragraph (2), 
     nothing in this section shall be construed to affect the 
     authority of any State to make use of any of its powers to 
     enforce the laws of such State with respect to which a health 
     insurance issuer is not exempt under subsection (b).
       ``(2) Courts of competent jurisdiction.--If a State seeks 
     an injunction regarding the conduct described in paragraphs 
     (1) and (2) of subsection (h), such injunction must be 
     obtained from a Federal or State court of competent 
     jurisdiction.
       ``(j) States' Authority To Sue.--Nothing in this section 
     shall affect the authority of any State to bring action in 
     any Federal or State court.
       ``(k) Generally Applicable Laws.--Nothing in this section 
     shall be construed to affect the applicability of State laws 
     generally applicable to persons or corporations.

     ``SEC. 2797. PRIMARY STATE MUST MEET FEDERAL FLOOR BEFORE 
                   ISSUER MAY SELL INTO SECONDARY STATES.

       ``A health insurance issuer may not offer, sell, or issue 
     individual health insurance coverage in a secondary State if 
     the primary State does not meet the following requirements:
       ``(1) The State insurance commissioner must use a risk-
     based capital formula for the determination of capital and 
     surplus requirements for all health insurance issuers.
       ``(2) The State must have legislation or regulations in 
     place establishing an independent review process for 
     individuals who are covered by individual health insurance 
     coverage unless the issuer provides an independent review 
     mechanism functionally equivalent (as determined by the 
     primary State insurance commissioner or official) to that 
     prescribed in the `Health Carrier External Review Model Act' 
     of the National Association of Insurance Commissioners for 
     all individuals who purchase insurance coverage under the 
     terms of this part.

     ``SEC. 2798. ENFORCEMENT.

       ``(a) In General.--Subject to subsection (b), with respect 
     to specific individual health insurance coverage the primary 
     State for such coverage has sole jurisdiction to enforce the 
     primary State's covered laws in the primary State and any 
     secondary State.
       ``(b) Secondary State's Authority.--Nothing in subsection 
     (a) shall be construed to affect the authority of a secondary 
     State to enforce its laws as set forth in the exception 
     specified in section 2796(b)(1).
       ``(c) Court Interpretation.--In reviewing action initiated 
     by the applicable secondary State authority, the court of 
     competent jurisdiction shall apply the covered laws of the 
     primary State.
       ``(d) Notice of Compliance Failure.--In the case of 
     individual health insurance coverage offered in a secondary 
     State that fails to comply with the covered laws of the 
     primary State, the applicable State authority of the 
     secondary State may notify the applicable State authority of 
     the primary State.''.
       (b) Effective Date.--The amendment made by subsection (a) 
     shall apply to individual health insurance coverage offered, 
     issued, or sold after the date of the enactment of this Act.

     SEC. 5. SEVERABILITY.

       If any provision of the Act or the application of such 
     provision to any person or circumstance is held to be 
     unconstitutional, the remainder of this Act and the 
     application of the provisions of such to any other person or 
     circumstance shall not be affected.
                                 ______