[Congressional Record Volume 155, Number 46 (Tuesday, March 17, 2009)]
[Senate]
[Pages S3183-S3185]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. ROCKEFELLER (for himself, Mr. Lautenberg, and Mr. Brown):
  S. 623. A bill to amend title I of the Employee Retirement Income 
Security Act of 1974, title XXVII of the Public Service Act, and the 
Internal Revenue Code of 1986 to prohibit preexisting condition 
exclusions in group health plans and in health insurance coverage in 
the group and individual markets; to the Committee on Health, 
Education, Labor, and Pensions.
  Mr. ROCKEFELLER. Mr. President, I rise today to introduce the Pre-
existing Condition Patient Protection Act, legislation to provide 
crucial protections for individuals with chronic and preexisting 
conditions. Unfair insurance market rules, including those which allow 
insurance companies to exclude coverage for preexisting health 
conditions, have forced thousands of American families into dire 
medical and financial situations. Addressing this issue is a priority 
of the President and should be a priority for Congress.
  As we begin to consider comprehensive health reform, including 
significant coverage expansions for the uninsured, this reform should 
also address the gaps in coverage for the 25 million Americans who are 
underinsured often due to their preexisting condition. Health insurance 
coverage should be meaningful and available when people need it.
  The Centers for Disease Control and Prevention, CDC, estimates that 
nearly 45 percent of Americans--or 133 million people--have at least 
one chronic condition. Furthermore, a report recently published in the 
Annals of Internal Medicine found that nearly one-third of all 
uninsured Americans in 2004 had received a chronic condition diagnosis. 
Early intervention and adequate treatment for those with chronic 
conditions is vital. Unfortunately, preexisting condition exclusions 
are often a barrier for individuals seeking access to comprehensive 
health insurance coverage.
  Congress passed the Health Insurance Portability and Accountability 
Act of 1996, HIPAA, P.L. 104-191, over 10 years ago with the objective 
of protecting Americans from interruptions in health insurance coverage 
resulting from job changes or other life transitions. HIPAA provides 
this protection by restricting when private insurers can use 
preexisting conditions to limit health insurance coverage. HIPAA has 
been successful, and many individuals have come to rely on its 
protections. However, after more than a decade, certain gaps in HIPAA's 
protection have become apparent.
  First, individuals who have been without health insurance coverage 
for 63 days or more are at risk of being permanently uninsurable. This 
is particularly true of individuals with preexisting conditions, 
because a 63-day gap in coverage eliminates any prior creditable 
coverage. If an employee cannot demonstrate that he or she had prior 
creditable and continuous coverage, an employer can exclude coverage 
for preexisting conditions for up to 12 months.
  Second, employers can restrict coverage for preexisting conditions to 
otherwise qualified employees based on a 6-month ``look-back'' period. 
This means that an employer may use medical recommendations, diagnoses, 
and treatments within the most recent six months to deny health 
coverage for a ``preexisting condition'' for up to 12 months.
  Third, the protections offered to individuals moving into a group 
health plan, or moving into the individual insurance market from a 
group plan, are not available to individuals attempting to shop around 
for policies within individual market. As a result, individuals who 
purchase policies in the nongroup market and never have a gap in 
coverage still have no protection against the preexisting condition 
exclusions that insurers may choose to impose. In most cases, there is 
no limit on the length of time an insurer can deny coverage under an 
individual insurance policy for a preexisting condition. An individual 
with a chronic condition who is buying coverage in the individual 
market today is likely to pay a high deductible, have a large monthly 
premium, and have the very illness they need coverage for written out 
of their policy.
  The Pre-existing Condition Patient Protection Act I am introducing 
today would address all three of these gaps in the current HIPAA law by 
eliminating preexisting condition exclusions in every single market. 
While this change is not the only insurance market reform necessary, it 
is a great step forward in improving the health coverage available to 
the 133 million Americans living with at least one chronic condition.
  Access to treatment is critical for these individuals, and a 
permanent fix to the law regarding coverage exclusions is crucial for 
our Nation in reforming our health care system. Therefore, I urge my 
colleagues to join me in supporting this important bill. The time for 
action is now.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
placed in the Record, as follows:

                                 S. 623

       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 ``Preexisting Condition 
     Patient Protection Act of 2009''.

[[Page S3184]]

     SEC. 2. FINDINGS.

       Congress makes the following findings:
       (1) According to the United States Census Bureau, 
     45,700,000 individuals were uninsured in 2007.
       (2) According to a recent study by the Commonwealth Fund, 
     the number of underinsured adults ages 19 to 64 has jumped 60 
     percent over the last 4 years, from 16,000,000 in 2003 to 
     25,000,000 in 2007.
       (3) According to the Center for Disease Control and 
     Prevention, approximately 45 percent of Americans have at 
     least 1 chronic condition.
       (4) Forty-four States currently allow insurance companies 
     to deny coverage for, limit coverage for, or charge increased 
     premiums for a pre-existing condition.
       (5) Over 26,000,000 individuals were enrolled in private 
     individual market health plans in 2007. Under the amendments 
     made by the Health Insurance Portability and Accountability 
     Act of 1996, these individuals have no protections against 
     pre-existing condition exclusions or waiting periods.
       (6) When an individual has a 63-day gap in health insurance 
     coverage, pre-existing condition exclusions, such as limiting 
     coverage, can be placed on them when they become insured 
     under a new health insurance policy.
       (7) Eliminating pre-existing condition exclusions for all 
     individuals is a vital safeguard to ensuring all Americans 
     have access to health care when in need.
       (8) According to a Kaiser Family Foundation/Harvard School 
     of Public Health public opinion poll, 58 percent of Americans 
     strongly favor the Federal Government requiring health 
     insurance companies to cover anyone who applies for health 
     coverage, even if they have a prior illness.

     SEC. 3. ELIMINATION OF PREEXISTING CONDITION EXCLUSIONS UNDER 
                   GROUP HEALTH PLANS.

       (a) Application Under the Employee Retirement Income 
     Security Act of 1974.--
       (1) Elimination of preexisting condition exclusions.--
     Section 701 of the Employee Retirement Income Security Act of 
     1974 (29 U.S.C. 1181) is amended--
       (A) by amending the heading to read as follows: 
     ``ELIMINATION OF PREEXISTING CONDITION EXCLUSIONS'';
       (B) by amending subsection (a) to read as follows:
       ``(a) In General.--A group health plan, and a health 
     insurance issuer offering group health insurance coverage, 
     with respect to a participant or beneficiary--
       ``(1) may not impose any pre-existing condition exclusion; 
     and
       ``(2) in the case of a group health plan that offers 
     medical care through health insurance coverage offered by a 
     health maintenance organization, may not provide for an 
     affiliation period with respect to coverage through the 
     organization.'';
       (C) in subsection (b), by striking paragraph (3) and 
     inserting the following:
       ``(3) Affiliation period.--The term `affiliation period' 
     means a period which, under the terms of the health insurance 
     coverage offered by the health maintenance organization, must 
     expire before the health insurance coverage becomes 
     effective.'';
       (D) by striking subsections (c), (d), (e), and (g); and
       (E) by redesignating subsection (f) (relating to special 
     enrollment periods) as subsection (c).
       (2) Clerical amendment.--The item in the table of contents 
     of such Act relating to section 701 is amended to read as 
     follows:

``Sec. 701. Elimination of pre-existing condition exclusions.''.

       (b) Application Under Public Health Service Act.--
       (1) Elimination of preexisting condition exclusions.--
     Section 2701 of the Public Health Service Act (42 U.S.C. 
     300gg) is amended--
       (A) by amending the heading to read as follows: 
     ``ELIMINATION OF PREEXISTING CONDITION EXCLUSIONS'';
       (B) by amending subsection (a) to read as follows:
       ``(a) In General.--A group health plan, and a health 
     insurance issuer offering group health insurance coverage, 
     with respect to a participant or beneficiary--
       ``(1) may not impose any pre-existing condition exclusion; 
     and
       ``(2) in the case of a group health plan that offers 
     medical care through health insurance coverage offered by a 
     health maintenance organization, may not provide for an 
     affiliation period with respect to coverage through the 
     organization.'';
       (C) in subsection (b), by striking paragraph (3) and 
     inserting the following:
       ``(3) Affiliation period.--The term `affiliation period' 
     means a period which, under the terms of the health insurance 
     coverage offered by the health maintenance organization, must 
     expire before the health insurance coverage becomes 
     effective.'';
       (D) by striking subsections (c), (d), (e), and (g); and
       (E) by redesignating subsection (f) (relating to special 
     enrollment periods) as subsection (c).
       (2) Technical amendments relating to employer size.--
     Section 2711 of such Act (42 U.S.C. 300gg-11) is amended--
       (A) in subsection (a)--
       (i) in the heading, by striking ``Small'';
       (ii) in paragraph (1)--

       (I) by striking ``(c) through (f)'' and inserting ``(b) 
     through (d)'';
       (II) in the matter before subparagraph (A), by striking 
     ``small''; and
       (III) in subparagraph (A), by striking ``small employer (as 
     defined in section 2791(e)(4))'' and inserting ``employer''; 
     and

       (iii) in paragraph (2)--

       (I) by striking ``small'' each place it appears; and
       (II) by striking ``coverage to a'' and inserting ``coverage 
     to an'';

       (B) by striking subsection (b);
       (C) in subsections (c), (d), and (e), by striking ``small'' 
     each place it appears; and
       (D) by striking subsection (f).
       (c) Application Under the Internal Revenue Code of 1986.--
       (1) Elimination of preexisting condition exclusions.--
     Section 9801 of the Internal Revenue Code of 1986 is 
     amended--
       (A) by amending the heading to read as follows: 
     ``ELIMINATION OF PREEXISTING CONDITION EXCLUSIONS'';
       (B) by amending subsection (a) to read as follows:
       ``(a) In General.--A group health plan with respect to a 
     participant or beneficiary may not impose any pre-existing 
     condition exclusion.'';
       (C) by striking paragraph (3) of subsection (b);
       (D) by striking subsections (c), (d), and (e); and
       (E) by redesignating subsection (f) (relating to special 
     enrollment periods) as subsection (c).
       (2) Clerical amendment.--The item in the table of sections 
     of chapter 100 of such Code relating to section 9801 is 
     amended to read as follows:

``Sec. 9801. Elimination of preexisting condition exclusions.''.

       (d) Effective Date.--
       (1) In general.--Except as provided in paragraph (2), the 
     amendments made by this section shall apply with respect to 
     group health plans for plan years beginning after the end of 
     the 12th calendar month following the date of the enactment 
     of this Act.
       (2) Special rule for collective bargaining agreements.--In 
     the case of a group health plan maintained pursuant to one or 
     more collective bargaining agreements between employee 
     representatives and one or more employers ratified before the 
     date of the enactment of this Act, the amendments made by 
     this section shall not apply to plan years beginning before 
     the later of--
       (A) the date on which the last of the collective bargaining 
     agreements relating to the plan terminates (determined 
     without regard to any extension thereof agreed to after the 
     date of the enactment of this Act); or
       (B) the date that is after the end of the 12th calendar 
     month following the date of enactment of this Act.

     For purposes of subparagraph (A), any plan amendment made 
     pursuant to a collective bargaining agreement relating to the 
     plan which amends the plan solely to conform to any 
     requirement added by the amendments made by this section 
     shall not be treated as a termination of such collective 
     bargaining agreement.

     SEC. 4. NONDISCRIMINATION IN INDIVIDUAL HEALTH INSURANCE.

       (a) In General.--Section 2741 of the Public Health Service 
     Act (42 U.S.C. 300gg-41) is amended by striking subsection 
     (a) and inserting the following:
       ``(a) In General.--
       ``(1) Guaranteed issue.--Subject to the succeeding 
     subsections of this section, each health insurance issuer 
     that offers health insurance coverage (as defined in section 
     2791(b)(1)) in the individual market to individuals residing 
     in an area may not, with respect to an eligible individual 
     (as defined in subsection (b)) residing in the area who 
     desires to enroll in individual health insurance coverage--
       ``(A) decline to offer such coverage to, or deny enrollment 
     of, such individual; or
       ``(B) impose any preexisting condition exclusion (as 
     defined in section 2701(b)(1)(A)) with respect to such 
     coverage.''.
       (b) Effective Date.--The amendments made by this section 
     shall apply with respect to health insurance coverage 
     offered, sold, issued, renewed, in effect, or operated in the 
     individual market after the end of the 12th calendar month 
     following the date of the enactment of this Act.

     SEC. 5. TRANSPARENCY IN CLAIMS DATA.

       (a) Report on Adverse Selection.--Not later than 2 years 
     after the date of enactment of this Act, the Secretary of 
     Health and Human Services shall submit to Congress a report 
     concerning the occurrence of adverse selection as a result of 
     the enactment of this Act. Such report shall be based on the 
     data reported under subsection (b).
       (b) Mandatory Reporting.--A health insurance issuer to 
     which this Act applies, shall upon the request of the 
     Secretary, submit to the Secretary of Health and Human 
     Services, data concerning--
       (1) the number of new enrollees in health plans offered by 
     the issuer during the year involved;
       (2) the number of enrollees who re-enrolled in health plans 
     offered by the issuer during the year involved;
       (3) the demographic characteristics of enrollees;
       (4) the number, nature, and dollar amount of claims made by 
     enrollees during the year involved;
       (5) the number of enrollees who disenrolled or declined to 
     be reenrolled during the year involved; and
       (6) any other information determined appropriate by such 
     Secretary.

[[Page S3185]]

       (c) Enforcement.--Part C of title XXVII of the Public 
     Health Service Act (42 U.S.C. 300gg-91 et seq.) is amended by 
     adding at the end the following:

     ``SEC. 2793. PROVISION OF INFORMATION.

       ``(a) In General.--The Secretary shall require that group 
     health plans and health insurance issuers to which this Act 
     applies provide data to the Secretary, at such times and in 
     such manner as the Secretary may require, in order to permit 
     the Secretary to monitor compliance with the requirements of 
     this Act (including requirements imposed under the 
     Preexisting Condition Patient Protection Act of 2009 (and the 
     amendment made by that Act)).
       ``(b) Civil Penalties.--
       ``(1) In general.--A group health plan or health insurance 
     issuer that fails to provide information as required under 
     subsection (a) shall be subject to a civil money penalty 
     under this section.
       ``(2) Amount of penalty.--
       ``(A) In general.--The maximum amount of penalty imposed 
     under this paragraph is $100 per covered life for each day 
     that the plan or issuer fails to comply with this section.
       ``(B) Consideration in imposition.--In determining the 
     amount of any penalty to be assessed under this paragraph, 
     the Secretary shall take into account the previous record of 
     compliance of the entity being assessed with this section and 
     the gravity of the violation.''.

     SEC. 6. REPORT ON AFFORDABLE HEALTH INSURANCE COVERAGE.

       Not later than 12 months after the date of enactment of 
     this Act, the Government Accountability Office shall submit 
     to the Secretary of Health and Human Services a report 
     concerning the impact of this Act and other Federal laws 
     relating to the regulation of health insurance and its effect 
     on the affordability of health insurance coverage for 
     individuals in all insurance markets and a description of the 
     effect of this Act on the expansion of coverage and 
     reductions in the number of uninsured and underinsured.
                                 ______