[Congressional Record (Bound Edition), Volume 147 (2001), Part 9]
[Senate]
[Pages 12079-12084]
[From the U.S. Government Publishing Office, www.gpo.gov]



                           TEXT OF AMENDMENTS

  SA 819. Mr. THOMPSON proposed an amendment to the bill S. 1052, to 
amend the Public Health Service Act and the Employee Retirement Income 
Security Act of 1974 to protect consumers in managed care plans and 
other health coverage; as follows:

       On page 150, strike line 17 and all that follows through 
     page 153, line 8, and insert the following:
       ``(9) Requirement of exhaustion.--
       ``(A) In general.--A cause of action may not be brought 
     under paragraph (1) in connection with any denial of a claim 
     for benefits of any individual until all administrative 
     processes under sections 102 and 103 of the Bipartisan 
     Patient Protection Act of 2001 (if applicable) have been 
     exhausted.
       ``(B) Exception for needed care.--A participant or 
     beneficiary may seek relief exclusively in Federal court 
     under subsection 502(a)(1)(B) prior to the exhaustion of 
     administrative remedies under sections 102, 103, or 104 of 
     the Bipartisan Patient Protection Act (as required under 
     subparagraph (A)) if it is demonstrated to the court that the 
     exhaustion of such remedies would cause irreparable harm to 
     the health of the participant or beneficiary. Notwithstanding 
     the awarding of relief under subsection 502(a)(1)(B) pursuant 
     to this subparagraph, no relief shall be available as a 
     result of, or arising under, paragraph (1)(A) or paragraph 
     (10)(B), with respect to a participant or beneficiary, unless 
     the requirements of subparagraph (A) are met.
       ``(C) Receipt of benefits during appeals process.--Receipt 
     by the participant or beneficiary of the benefits involved in 
     the claim for benefits during the pendency of any 
     administrative processes referred to in subparagraph (A) or 
     of any action commenced under this subsection--
       ``(i) shall not preclude continuation of all such 
     administrative processes to their conclusion if so moved by 
     any party, and
       ``(ii) shall not preclude any liability under subsection 
     (a)(1)(C) and this subsection in connection with such claim.

     The court in any action commenced under this subsection shall 
     take into account any receipt of benefits during such 
     administrative processes or such action in determining the 
     amount of the damages awarded.
       ``(D) Admissible.--Any determination made by a reviewer in 
     an administrative proceeding under section 103 of the 
     Bipartisan Patient Protection Act of 2001 shall be admissible 
     in any Federal court proceeding and shall be presented to the 
     trier of fact.
       On page 165, strike line 15 and all that follows through 
     page 168, line 3, and insert the following:
       ``(4) Requirement of exhaustion.--
       ``(A) In general.--A cause of action may not be brought 
     under paragraph (1) in connection with any denial of a claim 
     for benefits of any individual until all administrative 
     processes under sections 102, 103, and 104 of the Bipartisan 
     Patient Protection Act of 2001 (if applicable) have been 
     exhausted.
       ``(B) Exception for needed care.--A participant or 
     beneficiary may seek relief exclusively in Federal court 
     under subsection 502(a)(1)(B) prior to the exhaustion of 
     administrative remedies under sections 102, 103, or 104 of 
     the Bipartisan Patient Protection Act (as required under 
     subparagraph (A)) if it is demonstrated to the court that the 
     exhaustion of such remedies would cause irreparable harm to 
     the health of the participant or beneficiary. Notwithstanding 
     the awarding of relief under subsection 502(a)(1)(B) pursuant 
     to this subparagraph, no relief shall be available as a 
     result of, or arising under, paragraph (1)(A) unless the 
     requirements of subparagraph (A) are met.
       ``(C) Receipt of benefits during appeals process.--Receipt 
     by the participant or beneficiary of the benefits involved in 
     the claim for benefits during the pendency of any 
     administrative processes referred to in subparagraph (A) or 
     of any action commenced under this subsection--
       ``(i) shall not preclude continuation of all such 
     administrative processes to their conclusion if so moved by 
     any party, and
       ``(ii) shall not preclude any liability under subsection 
     (a)(1)(C) and this subsection in connection with such claim.
       ``(D) Admissible.--Any determination made by a reviewer in 
     an administrative proceeding under section 104 of the 
     Bipartisan Patient Protection Act of 2001 shall be admissible 
     in any Federal or State court proceeding and shall be 
     presented to the trier of fact.
                                  ____

  SA 820. Mr. McCAIN (for himself, Mr. Bayh, Mr. Carper, and Mr. 
Edwards) proposed an amendment to the bill S. 1052, to amend the Public 
Health Service Act and the Employee Retirement Income Security Act of 
1974 to protect consumers in managed care plans and other health 
coverage; as follows:

       On page 36 line 5, strike ``except'' and all that follows 
     through ``(2)'' on line 8.
       On page 62, between lines 10 and 11, insert the following:

       (V) Compliance with the requirement of subsection (d)(1) 
     that only medically reviewable decisions shall be the subject 
     of independent medical review and with the requirement of 
     subsection (d)(3) that independent medical reviewers may not 
     require coverage for specifically excluded benefits.

       On page 62, line 20, after the period insert the following: 
     ``The Secretary, or organization, shall revoke a 
     certification or deny a recertification with respect to an 
     entity if there is a showing that the entity has a pattern or 
     practice of ordering coverage for benefits that are 
     specifically excluded under the plan or coverage.''.
       On page 62, between lines 20 and 21, insert the following:
       (vii) Petition for denial or withdrawal.--An individual may 
     petition the Secretary, or an organization providing the 
     certification involves, for a denial of recertification or a 
     withdrawal of a certification with respect to an entity under 
     this subparagraph if there is a pattern or practice of such 
     entity failing to meet a requirement of this section.
       On page 66, between lines 10 and 11, insert the following:
       (5) Report.--Not later than 12 months after the general 
     effective date referred to in section 401, the General 
     Accounting Office shall prepare and submit to the appropriate 
     committees of Congress a report concerning--
       (A) the information that is provided under paragraph 
     (3)(D);
       (B) the number of denials that have been upheld by 
     independent medical reviewers and the number of denials that 
     have been reversed by such reviewers; and
       (C) the extent to which independent medical reviewers are 
     requiring coverage for benefits that are specifically 
     excluded under the plan or coverage.
                                  ____

  SA 821. Mr. ALLARD submitted an amendment intended to be proposed by 
him to the bill S. 1052, to amend the Public Health Service Act and the 
Employee Retirement Income Security Act of 1974 to protect consumers in 
managed care plans and other health coverage; which was ordered to lie 
on the table; as follows:

       On page 148, between lines 23 and 24, insert the following:
       ``(D) Exclusion of small employers.--
       ``(i) In General.--Notwithstanding any other provision of 
     this paragraph, in addition to excluding certain physicians, 
     other health care professionals, and certain hospitals from 
     liability under paragraph (1), paragraph (1)(A) does not 
     create any liability on the part of a small employer (or on 
     the part of an employee of such an employer acting within the 
     scope of employment).
        ``(ii) Definition.--In clause (i), the term `small 
     employer' means an employer----
       ``(I) that, during the calendar year preceding the calendar 
     year for which a determination under this subparagraph is 
     being made, employed an average of at least 2 but not more 
     than 15 employees on business days; and
       ``(II) maintaining the plan involved that is acting, 
     serving, or functioning as a fiduciary, trustee or plan 
     administrator, including----
       ``(aa) a small employer described in section 3(16)(B)(i) 
     with respect to a plan maintained by a single employer; and
       ``(bb) one or more small employers or employee 
     organizations described in section 3(16)(B)(iii) in the case 
     of a multi-employer plan.
       ``(iii) Application of certain rules in determination of 
     employer size.--For purposes of this subparagraph:

[[Page 12080]]

       ``(I) Application of aggregation rule for employers.--All 
     persons treated as a single employer under subsection (b), 
     (c), (m), or (o) of section 414 of the Internal Revenue Code 
     of 1986 shall be treated as 1 employer.
        ``(II) Employers not in existence in preceding year.--In 
     the case of an employer which was not in existence throughout 
     the preceding calendar year, the determination of whether 
     such employer is a small employer shall be based on the 
     average number of employees that it is reasonably expected 
     such employer will employ on business days in the current 
     calendar year.
       ``(III) Predecessors.--Any reference in this paragraph to 
     an employer shall include a reference to any predecessor of 
     such employer.
       On page 165, between lines 14 and 15, insert the following:
       ``(D) Exclusion of small employers.--
       ``(i) In general.--Notwithstanding any other provision of 
     this paragraph, in addition to excluding certain physicians, 
     other health care professionals, and certain hospitals from 
     liability under paragraph (1), paragraph (1)(A) does not 
     create any liability on the part of a small employer (or on 
     the part of an employee of such an employer acting within the 
     scope of employment).
       ``(ii) Definition.--In clause (i), the term ``small 
     employer' means an employer--
       ``(I) that, during the calendar year preceding the calendar 
     year for which a determination under this subparagraph is 
     being made, employed an average of at least 2 but not more 
     than 15 employees on business days; and
       ``(II) maintaining the plan involved that is acting, 
     serving, or functioning as a fiduciary, trustee or plan 
     administrator, including--
       ``(aa) a small employer described in section 3(16)(B)(i) 
     with respect to a plan maintained by a single employer; and
       ``(bb) one or more small employers or employee 
     organizations described in section 3(16)(B)(iii) in the case 
     of a multi-employer plan.
       ``(iii) Application of certain rules in determination of 
     employer size.--For purposes of this subparagraph:
       ``(I) Application of aggregation rule for employers.--All 
     persons treated as a single employer under subsection (b), 
     (c), (m), or (o) of section 414 of the Internal Revenue Code 
     of 1986 shall be treated as 1 employer.
       ``(II) Employers not in existence in preceding year.--In 
     the case of an employer which was not in existence throughout 
     the preceding calendar year, the determination of whether 
     such employer is a small employer shall be based on the 
     average number of employees that it is reasonably expected 
     such employer will employ on business days in the current 
     calendar year.
       ``(III) Predecessors.--Any reference in this paragraph to 
     an employer shall include a reference to any predecessor of 
     such employer.''
                                  ____

  SA 822. Mr. ALLARD submitted an amendment intended to be proposed by 
him to the bill S. 1052, to amend the Public Health Service Act and the 
Employee Retirement Income Security Act of 1974 to protect consumers in 
managed care plans and other health coverage; which was ordered to lie 
on the table; as follows:

       At the end of the bill, add the following:

     SEC.   . TEN-YEAR EXTENSION OF MEDICARE COST CONTRACTS.

       Section 1876(h)(5)(C) of the Social Security Act (42 U.S.C. 
     1395mm(h)(5)(C)), as redesignated by section 634(1) of the 
     Medicare, Medicaid, and SCHIP Benefits Improvement and 
     Protection Act of 2000 (114 Stat. 2763A-568), as enacted into 
     law by section 1(a)(6) of Public Law 106-554), is amended by 
     striking ``2004'' and inserting ``2014''.
                                  ____

  SA 823. Mr. ALLARD submitted an amendment intended to be proposed by 
him to the bill S. 1052, to amend the Public Health Service Act and the 
Employee Retirement Income Security Act of 1974 to protect consumers in 
managed care plans and other health coverage; which was ordered to lie 
on the table; as follows:

       At the end of the bill, add the following:

     SEC.   . NINE-YEAR EXTENSION OF MEDICARE COST CONTRACTS

       Section 1876(h)(5)(C) of the Social Security Act (42 U.S.C. 
     1395mm(h)(5)(C)), as redesignated by section 634(1) of the 
     Medicare, Medicaid, and SCHIP Benefits Improvement and 
     Protection Act of 2000 (114 Stat. 2763A-568), as enacted into 
     law by section 1(a)(6) of Public Law 106-554), is amended by 
     striking ``2004'' and inserting ``2013''.
                                  ____

  SA 824. Mr. ALLARD submitted an amendment intended to be proposed by 
him to the bill S. 1052, to amend the Public Health Service Act and the 
Employee Retirement Income Security Act of 1974 to protect consumers in 
managed care plans and other health coverage; which was ordered to lie 
on the table; as follows:

       At the end of the bill, add the following:

     SEC.   . NINE-YEAR EXTENSION OF MEDICARE COST CONTRACTS

       Section 1876(h)(5)(C) of the Social Security Act (42 U.S.C. 
     1395mm(h)(5)(C)), as redesignated by section 634(1) of the 
     Medicare, Medicaid, and SCHIP Benefits Improvement and 
     Protection Act of 2000 (114 Stat. 2763A-568), as enacted into 
     law by section 1(a)(6) of Public Law 106-554), is amended by 
     striking ``2004'' and inserting ``2012''.
                                  ____

  SA 825. Mr. ALLARD submitted an amendment intended to be proposed by 
him to the bill S. 1052, to amend the Public Health Service Act and the 
Employee Retirement Income Security Act of 1974 to protect consumers in 
managed care plans and other health coverage; which was ordered to lie 
on the table; as follows:

       At the end of the bill, add the following:

     SEC.  . SEVEN-YEAR EXTENSION OF MEDICARE COST CONTRACTS.

       Section 1876(h)(5)(C) of the Social Security Act (42 U.S.C. 
     1395mm(h)(5)(C)), as redesignated by section 634(1) of the 
     Medicare, Medicaid, and SCHIP Benefits Improvement and 
     Protection Act of 2000 (114 Stat. 2763A-568), as enacted into 
     law by section 1(a)(6) of Public Law 106-554), is amended by 
     striking ``2004'' and inserting ``2011''.
                                  ____

  SA 826. Ms. COLLINS (for herself, Mr. Nelson of Nebraska, Mr. Enzi, 
Mr. Voinovich, Mr. Hutchinson, and Mr. Roberts) proposed an amendment 
to the bill S. 1052, to amend the Public Health Service Act and the 
Employee Retirement Income Security Act of 1974 to protect consumers in 
managed care plans and other health coverage; as follows:

       Beginning on page 122, strike line 19 and all that follows 
     through line 16 on page 129, and insert the following:

     SEC. 152. PREEMPTION; STATE FLEXIBILITY; CONSTRUCTION.

       (a) General Rule.--
       (1) No preemption.--
       (A) In general.--Subject to paragraph (2), nothing in 
     subtitles B, C or D shall be construed to preempt or 
     supersede any provision of State law that is enacted prior to 
     the effective date that establishes, implements, or continues 
     in effect any standard or requirement relating to health 
     insurance issuers (in connection with group health insurance 
     coverage or otherwise) and non-Federal governmental plans 
     with respect to a patient protection requirement.
       (B) Notification.--Subparagraph (A) shall apply to a State 
     that has, by not later than the effective date, submitted a 
     notice to the Secretary of the existence of a State law 
     described in such subparagraph.
       (2) Appeals.--Subtitle A shall not be construed to 
     supersede any provision of State law which establishes, 
     implements, or continues in effect any standard or 
     requirement solely relating to health insurance issuers in 
     connection with individual health insurance coverage and to 
     non-Federal governmental plans except to the extent that such 
     standard or requirement prevents the application of a 
     requirement of such subtitle.
       (3) Continued preemption with respect to group health 
     plans.--Nothing in this title shall be construed to affect or 
     modify the provisions of section 514 of the Employee 
     Retirement Income Security Act of 1974 (29 U.S.C. 1144) with 
     respect to group health plans.
       (b) State Certification.--
       (1) In general.--Effective beginning on the effective date, 
     a State shall submit to the Secretary a certification that--
       (A) the State has enacted one or more State laws or 
     regulations that are consistent with the purposes of the 
     patient protection requirements of this title, with respect 
     to health insurance coverage that is issued in the State, 
     including group coverage, individual coverage, and coverage 
     under non-Federal governmental plans;
       (B) the State has not enacted a law described in 
     subparagraph (A) because of the adverse impact that such a 
     law would have on premiums paid for health care coverage in 
     the State and the adverse impact that such increases in 
     premiums would have on the number of individuals in the State 
     with health insurance coverage; or
       (C) the State has not enacted a law described in 
     subparagraph (A) because the existence of a managed care 
     market in the State is negligible.
       (2) Receipt and review by secretary.--
       (A) In general.--The Secretary shall--
       (i) promptly review a certification submitted under 
     paragraph (1); and
       (ii) approve the certification unless the Secretary finds 
     that there is no rational basis for such approval.
       (B) Approval deadlines.--
       (i) Initial review.--A certification under paragraph (1) is 
     considered approved unless the Secretary notifies the State 
     in writing, within 90 days after the date of receipt of the 
     certification--
       (I) that the certification is disapproved because there is 
     no rational basis for the certification;
       (II) with respect to a certification described in paragraph 
     (1)(A), that the Secretary determined that the State law does 
     not provide for patient protections that are

[[Page 12081]]

     consistent with the purposes of the patient protection 
     requirement to which the law relates; or
       (III) that specified additional information is needed.

     A notice under this clause shall include an explanation of 
     the basis for the determination of the Secretary and shall 
     identify specific deficiencies in the State certification.
       (ii) Additional information.--With respect to a State that 
     has been notified by the Secretary under clause (i)(III) that 
     specified additional information is needed, the Secretary 
     shall make a determination with respect to such certification 
     within 60 days after the date on which such specified 
     additional information is received by the Secretary.
       (C) Approval for failure to meet deadline.--If the 
     Secretary fails to meet the deadline applicable under 
     subparagraph (B) with respect to a State certification, the 
     certification shall be deemed to be approved.
       (D) State challenge.--A State that has a certification 
     disapproved by the Secretary under subparagraph (A) may 
     challenge such disapproval in the appropriate United States 
     district court.
       (3) Certification of all or selective protections.--A 
     certification under this subsection may be submitted with 
     respect to all patient protection requirements or selective 
     requirements.
       (4) Termination of certification.--
       (A) In general.--The Secretary, not more frequently than 
     once every 5 years, may request that a State with respect to 
     which a certification has been approved under this 
     subsection, submit an assurance to the Secretary that with 
     respect to a certification, the assurances contained in the 
     certification are still applicable with respect to the State.
       (B) Termination.--If a State fails to submit an assurance 
     to the Secretary under subparagraph (A) within the 60-day 
     period beginning on the date on which the Secretary makes a 
     request for such an assurance, the certification applicable 
     to the State under this section shall terminate.
       (5) Rule of construction.--Nothing in this section shall be 
     construed to prohibit a State from submitting more than one 
     certification under paragraph (1).
       (c) Effect of Certification.--
       (1) In general.--A State that has submitted--
       (A) a notice under subsection (a)(1)(B); or
       (B) a certification that has been approved by the Secretary 
     under subsection (b);

     with respect to all of the patient protection requirements 
     shall be eligible to receive a grant under subsection (d).
       (2) Effect of termination.--A State that has a 
     certification terminated under subsection (b)(4) shall not be 
     eligible to receive grant funds under subsection (d) until 
     such time as the State has a new certification in effect.
       (3) Rule of construction.--
       (A) In general.--Except as provided in subparagraph (B), 
     nothing in this Act shall be construed to apply any patient 
     protection requirement in a State unless the State enacts a 
     State law with respect to such application.
       (B) Self-insured plans.--Notwithstanding this section, the 
     patient protection requirements of this Act shall apply to 
     self-insured group health plans as provided for under section 
     714 of the Employee Retirement Income Security Act.
       (d) Patient Quality Enhancement Grants.--
       (1) In general.--Beginning on the effective date, the 
     Secretary shall award grants to eligible States to enable 
     such States to carry out activities to promote high quality 
     health care.
       (2) Eligibility.--To be eligible to receive a grant under 
     this subsection, a State shall--
       (A) be a State described in subsection (c)(1); and
       (B) prepare and submit to the Secretary an application at 
     such time, in such manner, and containing such information as 
     the Secretary may require.
       (3) Use of funds.--A State may use amounts awarded under a 
     grant under this subsection to carry out activities to 
     promote increased health care quality, educate consumers on 
     health care products, provide health care coverage, improve 
     patient safety, carry out enforcement activities with respect 
     to compliance with State patient protection laws, and carry 
     out other activities determined appropriate by the Secretary.
       (4) Formula.--The Secretary shall determine the amount of 
     each grant based on the population of the State relative to 
     other eligible States.
       (5) Authorization of appropriations.--There is authorized 
     to be appropriated to carry out this subsection, $500,000,000 
     for fiscal year 2002, and such sums as may be necessary for 
     each subsequent fiscal year.
       (e) Rule of Construction.--Nothing in this section shall be 
     construed to prohibit a State with a certification that has 
     been approved under subsection (b) from amending or otherwise 
     modifying State laws or regulations that the approval was 
     based upon.
       (f) Limitation on Delegation of Functions.--The Secretary 
     may not delegate the duties and authority provided to the 
     Secretary under this section to the Center for Medicare and 
     Medicaid Services.
       (g) Nonapplicability of Provisions.--Nothing in this 
     section shall be construed to apply the patient protection 
     requirements to States except as specifically provided for in 
     this section.
       (h) Definitions.--In this section:
       (1) Effective date.--The term ``effective date'' means 
     October 1, 2002.
       (2) Patient protection requirement.--The term ``patient 
     protection requirement'' means any one or more of the 
     following requirements:
       (A) Section 111 (relating to consumer choice option) with 
     respect to non-Federal governmental plans only.
       (B) Section 112 (relating to choice of health care 
     professional).
       (C) Section 113 (relating to access to emergency care).
       (D) Section 114 (relating to timely access to specialists).
       (E) Section 115 (relating to patient access to obstetric 
     and gynecological care).
       (F) Section 116 (relating to access to pediatric care).
       (G) Section 117 (relating to continuity of care), but only 
     insofar as a replacement issuer assumes the obligation for 
     continuity of care.
       (H) Section 118 (relating to access to needed prescription 
     drugs).
       (I) Section 119 (relating to coverage for individuals 
     participating in approved clinical trials).
       (J) Section 120 (relating to required coverage for minimum 
     hospital stays).
       (K) Section 121 (relating to access to information).
       (L) A prohibition under--
       (i) section 131 (relating to prohibition of interference 
     with certain medical communications);
       (ii) section 132 (relating to prohibition of discrimination 
     against providers based on licensure); and
       (iii) section 133 (relating to prohibition against improper 
     incentive arrangements.)
       (M) Section 134 (relating to the payment of claims).
       (N) Section 135 (relating to protection for patient 
     advocacy).
       (3) State, state law.--The terms ``State'' and ``State 
     law'' shall have the meanings given such terms in section 
     2723(d) of the Public Health Service Act (42 U.S.C. 300gg-
     23(d)).
                                  ____

  SA 827. Mr. DOMENICI submitted an amendment intended to be proposed 
by him to the bill S. 1052, to amend the Public Health Service Act and 
the Employee Retirement Income Security Act of 1974 to protect 
consumers in managed care plans and other health coverage; which was 
ordered to lie on the table; as follows:

       At the appropriate place in title V, insert the following:

     SEC.   . RADIATION EXPOSURE COMPENSATION ACT.

       (a) In General.--Section 3(e) of the Radiation Exposure 
     Compensation Act (42 U.S.C. 2210 note) is amended--
       (1) in the subsection heading by striking the first 2 words 
     and inserting ``Indefinite''; and
       (2) by striking ``authorized to be''.
       (b) Effective Date.--The amendments made by subsection (a) 
     take effect on October 1, 2001.
                                  ____

  SA 828. Mrs. HUTCHISON submitted an amendment intended to be proposed 
by her to the bill S. 1052, to amend the Public Health Service Act and 
the Employee Retirement Income Security Act of 1974 to protect 
consumers in managed care plans and other health coverage; which was 
ordered to lie on the table; as follows:

       Beginning on page 98, strike line 2 and all that follows 
     through line 21 on page 109, and insert the following:

     SEC. 121. PATIENT ACCESS TO INFORMATION.

       (a) Requirement.--
       (1) Disclosure.--
       (A) In general.--A group health plan, and a health 
     insurance issuer that provides coverage in connection with 
     health insurance coverage, shall provide for the disclosure 
     to participants, beneficiaries, and enrollees--
       (i) of the information described in subsection (b) at the 
     time of the initial enrollment of the participant, 
     beneficiary, or enrollee under the plan or coverage;
       (ii) of such information on an annual basis--

       (I) in conjunction with the election period of the plan or 
     coverage if the plan or coverage has such an election period; 
     or
       (II) in the case of a plan or coverage that does not have 
     an election period, in conjunction with the beginning of the 
     plan or coverage year;

       (iii) of information relating to any material reduction to 
     the benefits or information described in such subsection or 
     subsection (c), in the form of a notice provided not later 
     than 30 days before the date on which the reduction takes 
     effect; and
       (iv) of information relating to the disenrollment of a 
     participant, beneficiary, or enrollee or relating to the plan 
     or issuer otherwise reducing coverage or benefits as 
     described in clause (iii), in the form of a notice provided 
     not later than 30 days before the date on which the 
     disenrollment or reduction takes effect.

[[Page 12082]]

       (B) Participants, beneficiaries, and enrollees.--The 
     disclosure required under subparagraph (A) shall be 
     provided--
       (i) jointly to each participant, beneficiary, and enrollee 
     who reside at the same address; or
       (ii) in the case of a beneficiary or enrollee who does not 
     reside at the same address as the participant or another 
     enrollee, separately to the participant or other enrollees 
     and such beneficiary or enrollee.
       (2) Provision of information.--Information shall be 
     provided to participants, beneficiaries, and enrollees under 
     this section at the last known address maintained by the plan 
     or issuer with respect to such participants, beneficiaries, 
     or enrollees, to the extent that such information is provided 
     to participants, beneficiaries, or enrollees via the United 
     States Postal Service or other private delivery service.
       (b) Required Information.--The informational materials to 
     be distributed under this section shall include for each 
     option available under the group health plan or health 
     insurance coverage the following:
       (1) Benefits.--A description of the covered benefits, 
     including--
       (A) any in- and out-of-network benefits;
       (B) specific preventive services covered under the plan or 
     coverage if such services are covered;
       (C) any specific exclusions or express limitations of 
     benefits described in section 104(b)(3)(C);
       (D) any other benefit limitations, including any annual or 
     lifetime benefit limits and any monetary limits or limits on 
     the number of visits, days, or services, and any specific 
     coverage exclusions; and
       (E) any definition of medical necessity used in making 
     coverage determinations by the plan, issuer, or claims 
     administrator.
       (2) Cost sharing.--A description of any cost-sharing 
     requirements, including--
       (A) any premiums, deductibles, coinsurance, copayment 
     amounts, and liability for balance billing, for which the 
     participant, beneficiary, or enrollee will be responsible 
     under each option available under the plan;
       (B) any maximum out-of-pocket expense for which the 
     participant, beneficiary, or enrollee may be liable;
       (C) any cost-sharing requirements for out-of-network 
     benefits or services received from nonparticipating 
     providers; and
       (D) any additional cost-sharing or charges for benefits and 
     services that are furnished without meeting applicable plan 
     or coverage requirements, such as prior authorization or 
     precertification.
       (3) Compensation methods.--A summary description by 
     category of the applicable methods (such as capitation, fee-
     for-service, salary, bundled payments, per diem, or a 
     combination thereof) used for compensating prospective or 
     treating health care professionals (including primary care 
     providers and specialists) and facilities in connection with 
     the provision of health care under the plan or coverage.
       (c) Additional Information.--The informational materials to 
     be provided upon the request of a participant, beneficiary, 
     or enrollee, as provided for under subsection (d), shall 
     include for each option available under a group health plan 
     or health insurance coverage the following:
       (1) Service area.--A description of the plan or issuer's 
     service area, including the provision of any out-of-area 
     coverage.
       (2) Participating providers.--A directory of participating 
     providers (to the extent a plan or issuer provides coverage 
     through a network of providers) that includes, at a minimum, 
     the name, address, and telephone number of each participating 
     provider, and information about how to inquire whether a 
     participating provider is currently accepting new patients, 
     and the State licensure status of the providers and 
     participating health care facilities, and, if available, the 
     education, training, specialty qualifications or 
     certifications of such professionals.
       (3) Choice of primary care provider.--A description of any 
     requirements and procedures to be used by participants, 
     beneficiaries, and enrollees in selecting, accessing, or 
     changing their primary care provider, including providers 
     both within and outside of the network (if the plan or issuer 
     permits out-of-network services), and the right to select a 
     pediatrician as a primary care provider under section 116 for 
     a participant, beneficiary, or enrollee who is a child if 
     such section applies.
       (4) Preauthorization requirements.--A description of the 
     requirements and procedures to be used to obtain 
     preauthorization for health services, if such 
     preauthorization is required.
       (5) Experimental and investigational treatments.--A 
     description of the process for determining whether a 
     particular item, service, or treatment is considered 
     experimental or investigational, and the circumstances under 
     which such treatments are covered by the plan or issuer.
       (6) Specialty care.--A description of the requirements and 
     procedures to be used by participants, beneficiaries, and 
     enrollees in accessing specialty care and obtaining referrals 
     to participating and nonparticipating specialists, including 
     any limitations on choice of health care professionals 
     referred to in section 112(b)(2) and the right to timely 
     access to specialists care under section 114 if such section 
     applies.
       (7) Clinical trials.--A description of the circumstances 
     and conditions under which participation in clinical trials 
     is covered under the terms and conditions of the plan or 
     coverage, and the right to obtain coverage for approved 
     clinical trials under section 119 if such section applies.
       (8) Prescription drugs.--To the extent the plan or issuer 
     provides coverage for prescription drugs, a statement of 
     whether such coverage is limited to drugs included in a 
     formulary, a description of any provisions and cost-sharing 
     required for obtaining on- and off-formulary medications, and 
     a description of the rights of participants, beneficiaries, 
     and enrollees in obtaining access to access to prescription 
     drugs under section 118 if such section applies.
       (9) Emergency services.--A summary of the rules and 
     procedures for accessing emergency services, including the 
     right of a participant, beneficiary, or enrollee to obtain 
     emergency services under the prudent layperson standard under 
     section 113, if such section applies, and any educational 
     information that the plan or issuer may provide regarding the 
     appropriate use of emergency services.
       (10) Claims and appeals.--A description of the plan or 
     issuer's rules and procedures pertaining to claims and 
     appeals, a description of the rights (including deadlines for 
     exercising rights) of participants, beneficiaries, and 
     enrollees under subtitle A in obtaining covered benefits, 
     filing a claim for benefits, and appealing coverage decisions 
     internally and externally (including telephone numbers and 
     mailing addresses of the appropriate authority), and a 
     description of any additional legal rights and remedies 
     available under section 502 of the Employee Retirement Income 
     Security Act of 1974 and applicable State law.
       (11) Advance directives and organ donation.--A description 
     of procedures for advance directives and organ donation 
     decisions if the plan or issuer maintains such procedures.
       (12) Information on plans and issuers.--The name, mailing 
     address, and telephone number or numbers of the plan 
     administrator and the issuer to be used by participants, 
     beneficiaries, and enrollees seeking information about plan 
     or coverage benefits and services, payment of a claim, or 
     authorization for services and treatment. Notice of whether 
     the benefits under the plan or coverage are provided under a 
     contract or policy of insurance issued by an issuer, or 
     whether benefits are provided directly by the plan sponsor 
     who bears the insurance risk.
       (13) Translation services.--A summary description of any 
     translation or interpretation services (including the 
     availability of printed information in languages other than 
     English, audio tapes, or information in Braille) that are 
     available for non-English speakers and participants, 
     beneficiaries, and enrollees with communication disabilities 
     and a description of how to access these items or services.
       (14) Accreditation information.--Any information that is 
     made public by accrediting organizations in the process of 
     accreditation if the plan or issuer is accredited, or any 
     additional quality indicators (such as the results of 
     enrollee satisfaction surveys) that the plan or issuer makes 
     public or makes available to participants, beneficiaries, and 
     enrollees.
       (15) Notice of requirements.--A description of any rights 
     of participants, beneficiaries, and enrollees that are 
     established by the Bipartisan Patient Protection Act 
     (excluding those described in paragraphs (1) through (14)) if 
     such sections apply. The description required under this 
     paragraph may be combined with the notices of the type 
     described in sections 711(d), 713(b), or 606(a)(1) of the 
     Employee Retirement Income Security Act of 1974 and with any 
     other notice provision that the appropriate Secretary 
     determines may be combined, so long as such combination does 
     not result in any reduction in the information that would 
     otherwise be provided to the recipient.
       (16) Utilization review activities.--A description of 
     procedures used and requirements (including circumstances, 
     timeframes, and appeals rights) under any utilization review 
     program under sections 101 and 102, including any drug 
     formulary program under section 118.
       (17) External appeals information.--Aggregate information 
     on the number and outcomes of external medical reviews, 
     relative to the sample size (such as the number of covered 
     lives) under the plan or under the coverage of the issuer.
       (d) Manner of Disclosure.--
       (1) In general.--The information described in this section 
     shall be disclosed in an accessible medium and format that is 
     calculated to be understood by a participant or enrollee.
       (2) Additional information.--The information described in 
     subsection (c) shall be made available and easily accessible, 
     without cost, to participants, beneficiaries, or enrollees 
     upon request. Such information shall be made available in 
     writing and by electronic means (including the Internet) and 
     in any other manner determined appropriate by the Secretary.

[[Page 12083]]

       (e) Rules of Construction.--Nothing in this section shall 
     be construed to prohibit a group health plan, or a health 
     insurance issuer in connection with health insurance 
     coverage, from--
       (1) distributing any other additional information 
     determined by the plan or issuer to be important or necessary 
     in assisting participants, beneficiaries, and enrollees in 
     the selection of a health plan or health insurance coverage; 
     and
       (2) complying with the provisions of this section by 
     providing information in brochures, through the Internet or 
     other electronic media, or through other similar means, so 
     long as--
       (A) the disclosure of such information in such form is in 
     accordance with requirements as the appropriate Secretary may 
     impose, and
       (B) in connection with any such disclosure of information 
     through the Internet or other electronic media--
       (i) the recipient has affirmatively consented to the 
     disclosure of such information in such form,
       (ii) the recipient is capable of accessing the information 
     so disclosed on the recipient's individual workstation or at 
     the recipient's home,
       (iii) the recipient retains an ongoing right to receive 
     paper disclosure of such information and receives, in advance 
     of any attempt at disclosure of such information to him or 
     her through the Internet or other electronic media, notice in 
     printed form of such ongoing right and of the proper software 
     required to view information so disclosed, and
       (iv) the plan administrator appropriately ensures that the 
     intended recipient is receiving the information so disclosed 
     and provides the information in printed form if the 
     information is not received.
                                  ____

  SA 829. Mr. DeWINE submitted an amendment intended to be proposed by 
him to the bill S. 1052, to amend the Public Health Service Act and the 
Employee Retirement Income Security Act of 1974 to protect consumers in 
managed care plans and other health coverage; which was ordered to lie 
on the table; as follows:

       On page 171, between lines 14 and 15, insert the following:

     SEC. 303. LIMITATION ON CERTAIN CLASS ACTION LITIGATION.

       Section 502 of the Employee Retirement Income Security Act 
     of 1974 (29 U.S.C. 1132), as amended by section 302, is 
     further amended by adding at the end the following:
       ``(o) Limitation on Class Action Litigation.--
       ``(1) In general.--Any claim or cause of action that is 
     maintained under this section in connection with a group 
     health plan, or health insurance coverage issued in 
     connection with a group health plan, as a class action, 
     derivative action, or as an action on behalf of any group of 
     2 or more claimants, may be maintained only if the class, the 
     derivative claimant, or the group of claimants is limited to 
     the participants or beneficiaries of a group health plan 
     established by only 1 plan sponsor. No action maintained by 
     such class, such derivative claimant, or such group of 
     claimants may be joined in the same proceeding with any 
     action maintained by another class, derivative claimant, or 
     group of claimants or consolidated for any purpose with any 
     other proceeding. In this paragraph, the terms `group health 
     plan' and `health insurance coverage' have the meanings given 
     such terms in section 733.''.
       ``(2) Effective date.--This subsection shall apply to all 
     civil actions that are filed on or after the date of 
     enactment of the Bipartisan Patients' Bill of Rights Act of 
     2001.''.
                                  ____

  SA 830. Mr. BREAUX (for himself, Mr. Jeffords, Mr. Kennedy, Mr. 
McCain, and Mr. Edwards) proposed an amendment to the bill S. 1052, to 
amend the Public Health Service Act and the Employee Retirement Income 
Security Act of 1974 to protect consumers in managed care plans and 
other health coverage; as follows:

       Beginning on page 122, strike line 19 and all that follows 
     through line 5 on page 128, and insert the following:

     SEC. 152. PREEMPTION; STATE FLEXIBILITY; CONSTRUCTION.

       (a) Continued Applicability of State Law With Respect to 
     Health Insurance Issuers.--
       (1) In general.--Subject to paragraph (2), this title shall 
     not be construed to supersede any provision of State law 
     which establishes, implements, or continues in effect any 
     standard or requirement solely relating to health insurance 
     issuers (in connection with group health insurance coverage 
     or otherwise) except to the extent that such standard or 
     requirement prevents the application of a requirement of this 
     title.
       (2) Continued preemption with respect to group health 
     plans.--Nothing in this title shall be construed to affect or 
     modify the provisions of section 514 of the Employee 
     Retirement Income Security Act of 1974 with respect to group 
     health plans.
       (3) Construction.--In applying this section, a State law 
     that provides for equal access to, and availability of, all 
     categories of licensed health care providers and services 
     shall not be treated as preventing the application of any 
     requirement of this title.
       (b) Application of Substantially Compliant State Laws.--
       (1) In general.--In the case of a State law that imposes, 
     with respect to health insurance coverage offered by a health 
     insurance issuer and with respect to a group health plan that 
     is a non-Federal governmental plan, a requirement that 
     substantially complies (within the meaning of subsection (c)) 
     with a patient protection requirement (as defined in 
     paragraph (3)) and does not prevent the application of other 
     requirements under this Act (except in the case of other 
     substantially compliant requirements), in applying the 
     requirements of this title under section 2707 and 2753 (as 
     applicable) of the Public Health Service Act (as added by 
     title II), subject to subsection (a)(2)--
       (A) the State law shall not be treated as being superseded 
     under subsection (a); and
       (B) the State law shall apply instead of the patient 
     protection requirement otherwise applicable with respect to 
     health insurance coverage and non-Federal governmental plans.
       (2) Limitation.--In the case of a group health plan covered 
     under title I of the Employee Retirement Income Security Act 
     of 1974, paragraph (1) shall be construed to apply only with 
     respect to the health insurance coverage (if any) offered in 
     connection with the plan.
       (3) Definitions.--In this section:
       (A) Patient protection requirement.--The term ``patient 
     protection requirement'' means a requirement under this 
     title, and includes (as a single requirement) a group or 
     related set of requirements under a section or similar unit 
     under this title.
       (B) Substantially compliant.--The terms ``substantially 
     compliant'', substantially complies'', or ``substantial 
     compliance'' with respect to a State law, mean that the State 
     law has the same or similar features as the patient 
     protection requirements and has a similar effect.
       (c) Determinations of Substantial Compliance.--
       (1) Certification by states.--A State may submit to the 
     Secretary a certification that a State law provides for 
     patient protections that are at least substantially compliant 
     with one or more patient protection requirements. Such 
     certification shall be accompanied by such information as may 
     be required to permit the Secretary to make the determination 
     described in paragraph (2)(A).
       (2) Review.--
       (A) In general.--The Secretary shall promptly review a 
     certification submitted under paragraph (1) with respect to a 
     State law to determine if the State law substantially 
     complies with the patient protection requirement (or 
     requirements) to which the law relates.
       (B) Approval deadlines.--
       (i) Initial review.--Such a certification is considered 
     approved unless the Secretary notifies the State in writing, 
     within 90 days after the date of receipt of the 
     certification, that the certification is disapproved (and the 
     reasons for disapproval) or that specified additional 
     information is needed to make the determination described in 
     subparagraph (A).
       (ii) Additional information.--With respect to a State that 
     has been notified by the Secretary under clause (i) that 
     specified additional information is needed to make the 
     determination described in subparagraph (A), the Secretary 
     shall make the determination within 60 days after the date on 
     which such specified additional information is received by 
     the Secretary.
       (3) Approval.--
       (A) In general.--The Secretary shall approve a 
     certification under paragraph (1) unless--
       (i) the State fails to provide sufficient information to 
     enable the Secretary to make a determination under paragraph 
     (2)(A); or
       (ii) the Secretary determines that the State law involved 
     does not provide for patient protections that substantially 
     comply with the patient protection requirement (or 
     requirements) to which the law relates.
       (B) State challenge.--A State that has a certification 
     disapproved by the Secretary under subparagraph (A) may 
     challenge such disapproval in the appropriate United States 
     district court.
       (C) Deference to states.--With respect to a certification 
     submitted under paragraph (1), the Secretary shall give 
     deference to the State's interpretation of the State law 
     involved and the compliance of the law with a patient 
     protection requirement.
       (D) Public notification.--The Secretary shall--
       (i) provide a State with a notice of the determination to 
     approve or disapprove a certification under this paragraph;
       (ii) promptly publish in the Federal Register a notice that 
     a State has submitted a certification under paragraph (1);
       (iii) promptly publish in the Federal Register the notice 
     described in clause (i) with respect to the State; and
       (iv) annually publish the status of all States with respect 
     to certifications.
       (4) Construction.--Nothing in this subsection shall be 
     construed as preventing the certification (and approval of 
     certification)

[[Page 12084]]

     of a State law under this subsection solely because it 
     provides for greater protections for patients than those 
     protections otherwise required to establish substantial 
     compliance.
       (5) Petitions.--
       (A) Petition process.--Effective on the date on which the 
     provisions of this Act become effective, as provided for in 
     section 401, a group health plan, health insurance issuer, 
     participant, beneficiary, or enrollee may submit a petition 
     to the Secretary for an advisory opinion as to whether or not 
     a standard or requirement under a State law applicable to the 
     plan, issuer, participant, beneficiary, or enrollee that is 
     not the subject of a certification under this subsection, is 
     superseded under subsection (a)(1) because such standard or 
     requirement prevents the application of a requirement of this 
     title.
       (B) Opinion.--The Secretary shall issue an advisory opinion 
     with respect to a petition submitted under subparagraph (A) 
     within the 60-day period beginning on the date on which such 
     petition is submitted.
       (d) Definitions.--For purposes of this section:
       (1) State law.--The term ``State law'' includes all laws, 
     decisions, rules, regulations, or other State action having 
     the effect of law, of any State. A law of the United States 
     applicable only to the District of Columbia shall be treated 
     as a State law rather than a law of the United States.
       (2) State.--The term ``State'' includes a State, the 
     District of Columbia, Puerto Rico, the Virgin Islands, Guam, 
     American Samoa, the Northern Mariana Islands, any political 
     subdivisions of such, or any agency or instrumentality of 
     such.
       On page 132, between lines 11 and 12, insert the following:

     SEC. 203. COOPERATION BETWEEN FEDERAL AND STATE AUTHORITIES.

       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. COOPERATION BETWEEN FEDERAL AND STATE 
                   AUTHORITIES.

       ``(a) Agreement with States.--A State may enter into an 
     agreement with the Secretary for the delegation to the State 
     of some or all of the Secretary's authority under this title 
     to enforce the requirements applicable under title I of the 
     Bipartisan Patient Protection Act with respect to health 
     insurance coverage offered by a health insurance issuer and 
     with respect to a group health plan that is a non-Federal 
     governmental plan.
       ``(b) Delegations.--Any department, agency, or 
     instrumentality of a State to which authority is delegated 
     pursuant to an agreement entered into under this section may, 
     if authorized under State law and to the extent consistent 
     with such agreement, exercise the powers of the Secretary 
     under this title which relate to such authority.''.
       On page 137, lines 3 and 4, strike ``equivalent'' and 
     insert ``compliant''.
       On page 137, lines 9 and 10, strike ``is substantially 
     equivalent'' and insert ``substantially complies''.
       On page 137, line 11, strike ``to'' and insert ``with''.
       On page 173, between lines 4 and 5, insert the following:

     SEC. 304. COOPERATION BETWEEN FEDERAL AND STATE AUTHORITIES.

       Subpart C of part 7 of subtitle B of title I of the 
     Employee Retirement Income Security Act of 1974 (29 U.S.C. 
     1191 et seq.) is amended by adding at the end the following 
     new section:

     ``SEC. 735. COOPERATION BETWEEN FEDERAL AND STATE 
                   AUTHORITIES.

       ``(a) Agreement with States.--A State may enter into an 
     agreement with the Secretary for the delegation to the State 
     of some or all of the Secretary's authority under this title 
     to enforce the requirements applicable under title I of the 
     Bipartisan Patient Protection Act with respect to health 
     insurance coverage offered by a health insurance issuer and 
     with respect to a group health plan that is a non-Federal 
     governmental plan.
       ``(b) Delegations.--Any department, agency, or 
     instrumentality of a State to which authority is delegated 
     pursuant to an agreement entered into under this section may, 
     if authorized under State law and to the extent consistent 
     with such agreement, exercise the powers of the Secretary 
     under this title which relate to such authority.''.

                          ____________________