[Congressional Record Volume 166, Number 169 (Tuesday, September 29, 2020)]
[Senate]
[Pages S5987-S5990]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 2673. Mr. McCONNELL (for Mr. Tillis) proposed an amendment to
amendment SA 2652 proposed by Mr. McConnell to the bill S. 178, to
condemn gross human rights violations of ethnic Turkic Muslims in
Xinjiang, and calling for an end to arbitrary detention, torture, and
harassment of these communities inside and outside China; as follows:
At the appropriate place, insert the following:
[[Page S5988]]
SEC. __. GUARANTEED AVAILABILITY OF COVERAGE; PROHIBITING
DISCRIMINATION.
(a) In General.--Subtitle C of title I of the Health
Insurance Portability and Accountability Act of 1996 (Public
Law 104-191) is amended by adding at the end the following:
``SEC. 196. PROHIBITION OF PRE-EXISTING CONDITION EXCLUSIONS.
``(a) In General.--A group health plan and a health
insurance issuer offering group or individual health
insurance coverage may not impose any pre-existing condition
exclusion with respect to such plan or coverage.
``(b) Definitions.--For purposes of this section:
``(1) Pre-existing condition exclusion.--
``(A) In general.--The term `pre-existing condition
exclusion' means, with respect to coverage, a limitation or
exclusion of benefits relating to a condition based on the
fact that the condition was present before the enrollment
date for such coverage, whether or not any medical advice,
diagnosis, care, or treatment was recommended or received
before such date.
``(B) Treatment of genetic information.--Genetic
information shall not be treated as a condition described in
subparagraph (A) in the absence of a diagnosis of the
condition related to such information.
``(2) Enrollment date.--The term `enrollment date' means,
with respect to an individual covered under a group health
plan or health insurance coverage, the date of enrollment of
the individual in the plan or coverage or, if earlier, the
first day of the waiting period for such enrollment.
``(3) Waiting period.--The term `waiting period' means,
with respect to a group health plan and an individual who is
a potential participant or beneficiary in the plan, the
period that must pass with respect to the individual before
the individual is eligible to be covered for benefits under
the terms of the plan.
``SEC. 197. GUARANTEED AVAILABILITY OF COVERAGE.
``(a) Guaranteed Issuance of Coverage in the Individual and
Group Market.--Subject to subsections (b) through (d), each
health insurance issuer that offers health insurance coverage
in the individual or group market in a State must accept
every employer and individual in the State that applies for
such coverage.
``(b) Enrollment.--
``(1) Restriction.--A health insurance issuer described in
subsection (a) may restrict enrollment in coverage described
in such subsection to open or special enrollment periods.
``(2) Establishment.--A health insurance issuer described
in subsection (a) shall, in accordance with the regulations
promulgated under paragraph (3), establish special enrollment
periods for qualifying events (under section 603 of the
Employee Retirement Income Security Act of 1974).
``(3) Regulations.--The Secretary shall promulgate
regulations with respect to enrollment periods under
paragraphs (1) and (2).
``(c) Special Rules for Network Plans.--
``(1) In general.--In the case of a health insurance issuer
that offers health insurance coverage in the group and
individual market through a network plan, the issuer may--
``(A) limit the employers that may apply for such coverage
to those with eligible individuals who live, work, or reside
in the service area for such network plan; and
``(B) within the service area of such plan, deny such
coverage to such employers and individuals if the issuer has
demonstrated, if required, to the applicable State authority
that--
``(i) it will not have the capacity to deliver services
adequately to enrollees of any additional groups or any
additional individuals because of its obligations to existing
group contract holders and enrollees; and
``(ii) it is applying this paragraph uniformly to all
employers and individuals without regard to the claims
experience of those individuals, employers and their
employees (and their dependents), or any health status-
related factor relating to such individuals, employees, and
dependents.
``(2) 180-day suspension upon denial of coverage.--An
issuer, upon denying health insurance coverage in any service
area in accordance with paragraph (1)(B), may not offer
coverage in the group or individual market within such
service area for a period of 180 days after the date such
coverage is denied.
``(d) Application of Financial Capacity Limits.--
``(1) In general.--A health insurance issuer may deny
health insurance coverage in the group or individual market
if the issuer has demonstrated, if required, to the
applicable State authority that--
``(A) it does not have the financial reserves necessary to
underwrite additional coverage; and
``(B) it is applying this paragraph uniformly to all
employers and individuals in the group or individual market
in the State consistent with applicable State law and without
regard to the claims experience of those individuals,
employers and their employees (and their dependents) or any
health status-related factor relating to such individuals,
employees, and dependents.
``(2) 180-day suspension upon denial of coverage.--A health
insurance issuer upon denying health insurance coverage in
connection with group health plans in accordance with
paragraph (1) in a State may not offer coverage in connection
with group health plans in the group or individual market in
the State for a period of 180 days after the date such
coverage is denied or until the issuer has demonstrated to
the applicable State authority, if required under applicable
State law, that the issuer has sufficient financial reserves
to underwrite additional coverage, whichever is later. An
applicable State authority may provide for the application of
this subsection on a service-area-specific basis
``(e) Definitions.--In this section and in sections 196 and
198:
``(1) The term `Secretary' means the Secretary of Health
and Human Services.
``(2) The terms `genetic information', `genetic test',
`group health plan', `group market', `health insurance
coverage', `health insurance issuer', `group health insurance
coverage', `individual health insurance coverage',
`individual market', and `underwriting purpose' have the
meanings given such terms in section 2791 of the Public
Health Service Act.''.
``SEC. 198. PROHIBITING DISCRIMINATION AGAINST INDIVIDUAL
PARTICIPANTS AND BENEFICIARIES BASED ON HEALTH
STATUS.
``(a) In General.--A group health plan and a health
insurance issuer offering group or individual health
insurance coverage may not establish rules for eligibility
(including continued eligibility) of any individual to enroll
under the terms of the plan or coverage based on any of the
following health status-related factors in relation to the
individual or a dependent of the individual:
``(1) Health status.
``(2) Medical condition (including both physical and mental
illnesses).
``(3) Claims experience.
``(4) Receipt of health care.
``(5) Medical history.
``(6) Genetic information.
``(7) Evidence of insurability (including conditions
arising out of acts of domestic violence).
``(8) Disability.
``(9) Any other health status-related factor determined
appropriate by the Secretary.
``(b) In Premium Contributions.--
``(1) In general.--A group health plan, and a health
insurance issuer offering group or individual health
insurance coverage, may not require any individual (as a
condition of enrollment or continued enrollment under the
plan) to pay a premium or contribution which is greater than
such premium or contribution for a similarly situated
individual enrolled in the plan on the basis of any health
status-related factor in relation to the individual or to an
individual enrolled under the plan as a dependent of the
individual.
``(2) Construction.--Nothing in paragraph (1) shall be
construed--
``(A) to restrict the amount that an employer or individual
may be charged for coverage under a group health plan except
as provided in paragraph (3) or individual health coverage,
as the case may be; or
``(B) to prevent a group health plan, and a health
insurance issuer offering group health insurance coverage,
from establishing premium discounts or rebates or modifying
otherwise applicable copayments or deductibles in return for
adherence to programs of health promotion and disease
prevention.
``(3) No group-based discrimination on basis of genetic
information.--
``(A) In general.--For purposes of this section, a group
health plan, and health insurance issuer offering group
health insurance coverage in connection with a group health
plan, may not adjust premium or contribution amounts for the
group covered under such plan on the basis of genetic
information.
``(B) Rule of construction.--Nothing in subparagraph (A) or
in paragraphs (1) and (2) of subsection (d) shall be
construed to limit the ability of a health insurance issuer
offering group or individual health insurance coverage to
increase the premium for an employer based on the
manifestation of a disease or disorder of an individual who
is enrolled in the plan. In such case, the manifestation of a
disease or disorder in one individual cannot also be used as
genetic information about other group members and to further
increase the premium for the employer.
``(c) Genetic Testing.--
``(1) Limitation on requesting or requiring genetic
testing.--A group health plan, and a health insurance issuer
offering health insurance coverage in connection with a group
health plan, shall not request or require an individual or a
family member of such individual to undergo a genetic test.
``(2) Rule of construction.--Paragraph (1) shall not be
construed to limit the authority of a health care
professional who is providing health care services to an
individual to request that such individual undergo a genetic
test.
``(3) Rule of construction regarding payment.--
``(A) In general.--Nothing in paragraph (1) shall be
construed to preclude a group health plan, or a health
insurance issuer offering health insurance coverage in
connection with a group health plan, from obtaining and using
the results of a genetic test in making a determination
regarding payment (as such term is defined for the purposes
of applying the regulations promulgated by the Secretary
under part C of title XI of the Social Security Act and
section 264 of this Act, as may be revised from time to time)
consistent with subsection (a).
[[Page S5989]]
``(B) Limitation.--For purposes of subparagraph (A), a
group health plan, or a health insurance issuer offering
health insurance coverage in connection with a group health
plan, may request only the minimum amount of information
necessary to accomplish the intended purpose.
``(4) Research exception.--Notwithstanding paragraph (1), a
group health plan, or a health insurance issuer offering
health insurance coverage in connection with a group health
plan, may request, but not require, that a participant or
beneficiary undergo a genetic test if each of the following
conditions is met:
``(A) The request is made pursuant to research that
complies with part 46 of title 45, Code of Federal
Regulations, or equivalent Federal regulations, and any
applicable State or local law or regulations for the
protection of human subjects in research.
``(B) The plan or issuer clearly indicates to each
participant or beneficiary, or in the case of a minor child,
to the legal guardian of such beneficiary, to whom the
request is made that--
``(i) compliance with the request is voluntary; and
``(ii) noncompliance will have no effect on enrollment
status or premium or contribution amounts.
``(C) No genetic information collected or acquired under
this paragraph shall be used for underwriting purposes.
``(D) The plan or issuer notifies the Secretary in writing
that the plan or issuer is conducting activities pursuant to
the exception provided for under this paragraph, including a
description of the activities conducted.
``(E) The plan or issuer complies with such other
conditions as the Secretary may by regulation require for
activities conducted under this paragraph.
``(d) Prohibition on Collection of Genetic Information.--
``(1) In general.--A group health plan, and a health
insurance issuer offering health insurance coverage in
connection with a group health plan, shall not request,
require, or purchase genetic information for underwriting
purposes.
``(2) Prohibition on collection of genetic information
prior to enrollment.--A group health plan, and a health
insurance issuer offering health insurance coverage in
connection with a group health plan, shall not request,
require, or purchase genetic information with respect to any
individual prior to such individual's enrollment under the
plan or coverage in connection with such enrollment.
``(3) Incidental collection.--If a group health plan, or a
health insurance issuer offering health insurance coverage in
connection with a group health plan, obtains genetic
information incidental to the requesting, requiring, or
purchasing of other information concerning any individual,
such request, requirement, or purchase shall not be
considered a violation of paragraph (2) if such request,
requirement, or purchase is not in violation of paragraph
(1).
``(e) Genetic Information of a Fetus or Embryo.--Any
reference in this part to genetic information concerning an
individual or family member of an individual shall--
``(1) with respect to such an individual or family member
of an individual who is a pregnant woman, include genetic
information of any fetus carried by such pregnant woman; and
``(2) with respect to an individual or family member
utilizing an assisted reproductive technology, include
genetic information of any embryo legally held by the
individual or family member.
``(f) Programs of Health Promotion or Disease Prevention.--
``(1) General provisions.--
``(A) General rule.--For purposes of subsection (b)(2)(B),
a program of health promotion or disease prevention (referred
to in this subsection as a `wellness program') shall be a
program offered by an employer that is designed to promote
health or prevent disease that meets the applicable
requirements of this subsection.
``(B) No conditions based on health status factor.--If none
of the conditions for obtaining a premium discount or rebate
or other reward for participation in a wellness program is
based on an individual satisfying a standard that is related
to a health status factor, such wellness program shall not
violate this section if participation in the program is made
available to all similarly situated individuals and the
requirements of paragraph (2) are complied with.
``(C) Conditions based on health status factor.--If any of
the conditions for obtaining a premium discount or rebate or
other reward for participation in a wellness program is based
on an individual satisfying a standard that is related to a
health status factor, such wellness program shall not violate
this section if the requirements of paragraph (3) are
complied with.
``(2) Wellness programs not subject to requirements.--If
none of the conditions for obtaining a premium discount or
rebate or other reward under a wellness program as described
in paragraph (1)(B) are based on an individual satisfying a
standard that is related to a health status factor (or if
such a wellness program does not provide such a reward), the
wellness program shall not violate this section if
participation in the program is made available to all
similarly situated individuals. The following programs shall
not have to comply with the requirements of paragraph (3) if
participation in the program is made available to all
similarly situated individuals:
``(A) A program that reimburses all or part of the cost for
memberships in a fitness center.
``(B) A diagnostic testing program that provides a reward
for participation and does not base any part of the reward on
outcomes.
``(C) A program that encourages preventive care related to
a health condition through the waiver of the copayment or
deductible requirement under group health plan for the costs
of certain items or services related to a health condition
(such as prenatal care or well-baby visits).
``(D) A program that reimburses individuals for the costs
of smoking cessation programs without regard to whether the
individual quits smoking.
``(E) A program that provides a reward to individuals for
attending a periodic health education seminar.
``(3) Wellness programs subject to requirements.--If any of
the conditions for obtaining a premium discount, rebate, or
reward under a wellness program as described in paragraph
(1)(C) is based on an individual satisfying a standard that
is related to a health status factor, the wellness program
shall not violate this section if the following requirements
are complied with:
``(A) The reward for the wellness program, together with
the reward for other wellness programs with respect to the
plan that requires satisfaction of a standard related to a
health status factor, shall not exceed 30 percent of the cost
of employee-only coverage under the plan. If, in addition to
employees or individuals, any class of dependents (such as
spouses or spouses and dependent children) may participate
fully in the wellness program, such reward shall not exceed
30 percent of the cost of the coverage in which an employee
or individual and any dependents are enrolled. For purposes
of this paragraph, the cost of coverage shall be determined
based on the total amount of employer and employee
contributions for the benefit package under which the
employee is (or the employee and any dependents are)
receiving coverage. A reward may be in the form of a discount
or rebate of a premium or contribution, a waiver of all or
part of a cost-sharing mechanism (such as deductibles,
copayments, or coinsurance), the absence of a surcharge, or
the value of a benefit that would otherwise not be provided
under the plan. The Secretaries of Labor, Health and Human
Services, and the Treasury may increase the reward available
under this subparagraph to up to 50 percent of the cost of
coverage if the Secretaries determine that such an increase
is appropriate.
``(B) The wellness program shall be reasonably designed to
promote health or prevent disease. A program complies with
the preceding sentence if the program has a reasonable chance
of improving the health of, or preventing disease in,
participating individuals and it is not overly burdensome, is
not a subterfuge for discriminating based on a health status
factor, and is not highly suspect in the method chosen to
promote health or prevent disease.
``(C) The plan shall give individuals eligible for the
program the opportunity to qualify for the reward under the
program at least once each year.
``(D) The full reward under the wellness program shall be
made available to all similarly situated individuals. For
such purpose, among other things:
``(i) The reward is not available to all similarly situated
individuals for a period unless the wellness program allows--
``(I) for a reasonable alternative standard (or waiver of
the otherwise applicable standard) for obtaining the reward
for any individual for whom, for that period, it is
unreasonably difficult due to a medical condition to satisfy
the otherwise applicable standard; and
``(II) for a reasonable alternative standard (or waiver of
the otherwise applicable standard) for obtaining the reward
for any individual for whom, for that period, it is medically
inadvisable to attempt to satisfy the otherwise applicable
standard.
``(ii) If reasonable under the circumstances, the plan or
issuer may seek verification, such as a statement from an
individual's physician, that a health status factor makes it
unreasonably difficult or medically inadvisable for the
individual to satisfy or attempt to satisfy the otherwise
applicable standard.
``(E) The plan or issuer involved shall disclose in all
plan materials describing the terms of the wellness program
the availability of a reasonable alternative standard (or the
possibility of waiver of the otherwise applicable standard)
required under subparagraph (D). If plan materials disclose
that such a program is available, without describing its
terms, the disclosure under this subparagraph shall not be
required.''.
(b) Conforming Amendment.--The table of contents under
section 1(b) of the Health Insurance Portability and
Accountability Act of 1996 (Public Law 104-191) is amended by
inserting after the item relating to section 195 the
following:
``Sec. 196. Prohibition of pre-existing condition exclusions.
``Sec. 197. Guaranteed Availability of Coverage.
``Sec. 198. Prohibiting Discrimination against individual participants
and beneficiaries based on health status.''.
[[Page S5990]]
(c) Enforcement.--
(1) PHSA.--Section 2723 of the Public Health Service Act
(42 U.S.C. 300gg-22) is amended--
(A) in subsection (a)--
(i) in paragraph (1), by inserting ``and sections 196 ,197,
and 198 of the Health Insurance Portability and
Accountability Act of 1996'' after ``this part''; and
(ii) in paragraph (2), by inserting ``or section 196, 197,
or 198 of the Health Insurance Portability and Accountability
Act of 1996'' after ``this part''; and
(B) in subsection (b), by inserting ``or section 196, 197,
or 198 of the Health Insurance Portability and Accountability
Act of 1996'' after ``this part'' each place such term
appears.
(2) ERISA.--Section 715 of the Employee Retirement Income
Security Act of 1974 (29 U.S.C. 1185d) is amended by adding
at the end the following:
``(c) Additional Provisions.--Section 197 of the Health
Insurance Portability and Accountability Act of 1996 shall
apply to health insurance issuers providing health insurance
coverage in connection with group health plans, and sections
196 and 198 of such Act shall apply to group health plans and
health insurance issuers providing health insurance coverage
in connection with group health plans, as if included in this
subpart, and to the extent that any provision of this part
conflicts with a provision of such section 197 with respect
to health insurance issuers providing health insurance
coverage in connection with group health plans or of such
section 196 or 198 with respect to group health plans or
health insurance issuers providing health insurance coverage
in connection with group health plans, the provisions of such
sections 196, 197, and 198, as applicable, shall apply.''.
(3) IRC.--Section 9815 of the Internal Revenue Code of 1986
is amended by adding at the end the following:
``(c) Additional Provisions.--Section 197 of the Health
Insurance Portability and Accountability Act of 1996 shall
apply to health insurance issuers providing health insurance
coverage in connection with group health plans, and section
196 and 198 of such Act shall apply to group health plans and
health insurance issuers providing health insurance coverage
in connection with group health plans, as if included in this
subchapter, and to the extent that any provision of this
chapter conflicts with a provision of such section 197 with
respect to health insurance issuers providing health
insurance coverage in connection with group health plans or
of such section 196 or 198 with respect to group health plans
or health insurance issuers providing health insurance
coverage in connection with group health plans, the
provisions of such sections 196, 197, and 198, as applicable,
shall apply.''.
(d) Effective Date.--This amendments made by this section
shall take effect one day after the date of enactment of this
Act.
______