[Congressional Record (Bound Edition), Volume 147 (2001), Part 9]
[Senate]
[Pages 12405-12416]
[From the U.S. Government Publishing Office, www.gpo.gov]



                           TEXT OF AMENDMENTS

  SA 831. Mr. BOND (for himself, Mr. Roberts, and Mr. Helms) 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 154, between lines 2 and 3, insert the following:
       ``(11) Minimum share of settlement of award.--
       ``(A) In general.--Except as provided in subparagraph (B), 
     a participant or beneficiary (or the estate of such 
     participant or beneficiary) shall receive not less than 85 
     percent of any award made as a result of a cause of action 
     brought by the participant or beneficiary (or estate) under 
     this subsection, after subtracting the amount of any 
     attorneys' fees from the total amount of such award.
       ``(B) Exception.--This paragraph shall not apply where the 
     amount awarded as a result of a cause of action brought by a 
     participant or beneficiary (or estate) under this subsection 
     is less than $100,000.
       ``(C) Definitions.--In this paragraph:
       ``(i) Attorneys' fees.--The term `attorneys' fees' means 
     any compensation for the direct or indirect representation or 
     other legal work performed in connection with a cause of 
     action brought under this subsection. Such term shall not 
     include reimbursements for any expenses incurred in 
     connection with such representation or work.
       ``(ii) Award.--The term `award' means the sum of--

       ``(I) any monetary consideration provided to a participant 
     or beneficiary (or the estate of such participant or 
     beneficiary) by a fiduciary of a group health plan, a health 
     insurance issuer offering health insurance coverage in 
     connection with a group health plan, or an agent of the plan, 
     issuer, or plan sponsor in connection with a cause of action 
     brought under this subsection, including any monetary 
     consideration provided for in any--

       ``(aa) final court decision;
       ``(bb) court order;
       ``(cc) settlement agreement;
       ``(dd) arbitration procedure; or
       ``(ee) alternative dispute resolution procedure (including 
     mediation); plus

       ``(II) any attorney's fees awarded under subsection (g)(1) 
     with respect to the participant or beneficiary (or estate); 
     less
       ``(III) any reimbursement for any expenses incurred in 
     connection with direct or indirect representation or other 
     legal work performed in connection with a cause of action 
     under this subsection.

       On page 169, between lines 12 and 13, insert the following:
       ``(11) Minimum share of settlement of award.--
       ``(A) In general.--Except as provided in subparagraph (B), 
     a participant or beneficiary (or the estate of such 
     participant or beneficiary) shall receive not less than 85 
     percent of any award made as a result of a cause of action 
     brought by the participant or beneficiary (or estate) under 
     this subsection, after subtracting the amount of any 
     attorneys' fees from the total amount of such award.
       ``(B) Exception.--This paragraph shall not apply where the 
     amount awarded as a result of a cause of action brought by a 
     participant or beneficiary (or estate) under this subsection 
     is less than $100,000.
       ``(C) Definitions.--In this paragraph:
       ``(i) Attorneys' fees.--The term `attorneys' fees' means 
     any compensation for the direct or indirect representation or 
     other legal work performed in connection with a cause of 
     action brought under this subsection. Such term shall not 
     include reimbursements for any expenses incurred in 
     connection with such representation or work.
       ``(ii) Award.--The term `award' means the sum of--

       ``(I) any monetary consideration provided to a participant 
     or beneficiary (or the estate of such participant or 
     beneficiary) by a fiduciary of a group health plan, a health 
     insurance issuer offering health insurance coverage in 
     connection with a group health plan, or an agent of the plan, 
     issuer, or plan sponsor in connection with a cause of action 
     brought under this subsection, including any monetary 
     consideration provided for in any--

       ``(aa) final court decision;
       ``(bb) court order;
       ``(cc) settlement agreement;
       ``(dd) arbitration procedure; or
       ``(ee) alternative dispute resolution procedure (including 
     mediation); less

       ``(II) any reimbursement for any expenses incurred in 
     connection with direct or indirect representation or other 
     legal work performed in connection with a cause of action 
     under this subsection.''
                                  ____


  SA 832. Mr. FRIST (for himself, Mr. Breaux, and Mr. Jeffords) 
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 105, line 2, after ``treatment'' insert the 
     following: ``The name of the designated decision-maker (or 
     decision-makers) appointed under section 502(n)(2) of the 
     Employee Retirement Income Security Act of 1974 for purposes 
     of making final determinations under section 103 and 
     approving coverage pursuant to the written determination of 
     an independent medical reviewer under section 104.''.
       Beginning on page 139, strike line 21 and all that follows 
     through line 14 on page 171, and insert the following:

     SEC. 302. AVAILABILITY OF COURT REMEDIES.

       (a) In General.--Section 502 of the Employee Retirement 
     Income Security Act of 1974 (29 U.S.C. 1132) is amended by 
     adding at the end the following:
       ``(n) Cause of Action Relating to Denial of a Claim for 
     Health Benefits.--
       ``(1) In general.--
       ``(A) Failure to comply with external medical review.--With 
     respect to an action commenced by a participant or 
     beneficiary (or the estate of the participant or beneficiary) 
     in connection with a claim for benefits under a group health 
     plan, if--
       ``(i) a designated decision-maker described in paragraph 
     (2) fails to exercise ordinary care in approving coverage 
     pursuant to the written determination of an independent 
     medical reviewer under section 104(d)(3)(F) of the Bipartisan 
     Patient Protection Act that reverses a denial of the claim 
     for benefits; and
       ``(ii) the failure described in clause (i) is the proximate 
     cause of substantial harm (as defined in paragraph (10)(G)) 
     to the participant or beneficiary;


[[Page 12406]]


     such designated decision-maker shall be liable to the 
     participant or beneficiary (or the estate) for economic and 
     noneconomic damages in connection with such failure and such 
     injury or death (subject to paragraph (4)).
       ``(B) Wrongful determination resulting in delay in 
     providing benefits.--With respect to an action commenced by a 
     participant or beneficiary (or the estate of the participant 
     or beneficiary) in connection with a claim for benefits under 
     a group health plan, if--
       ``(i) a designated decision-maker described in paragraph 
     (2)--

       ``(I) fails to exercise ordinary care in making a 
     determination denying the claim for benefits under section 
     102 of the Bipartisan Patient Protection Act (relating to an 
     initial claim for benefits); or
       ``(II) fails to exercise ordinary care in making a 
     determination denying the claim for benefits under section 
     103 of such Act (relating to an internal appeal);

       ``(ii) the denial described in clause (i) is reversed by an 
     independent medical reviewer under section 104(d) of such 
     Act, or the coverage for the benefit involved is approved 
     after the denial is referred to the independent medical 
     reviewer but prior to the determination of the reviewer under 
     such section; and
       ``(iii) the delay attributable to the failure described in 
     clause (i) is the proximate cause of substantial harm to, or 
     the wrongful death of, the participant or beneficiary;

     such designated decision-maker shall be liable to the 
     participant or beneficiary (or the estate) for economic and 
     noneconomic damages in connection with such failure and such 
     injury or death (subject to paragraph (4)).
       ``(C) Limitation on liability based on appointment of 
     designated decision-maker.--If a plan sponsor or named 
     fiduciary appoints a designated decision-maker in accordance 
     with paragraph (2), the plan sponsor or named fiduciary, or 
     any other person or group health plan (or their employees) 
     associated with the plan sponsor or named fiduciary, shall 
     not be liable under this paragraph. The appointment of a 
     designated decision-maker in accordance with paragraph (2) 
     shall not affect the liability of the appointing plan sponsor 
     or named fiduciary for the failure of the plan sponsor or 
     named fiduciary to comply with any other requirement of this 
     title.
       ``(D) Prevention of duplication of action with action under 
     state law.--No action may be brought under this subsection 
     based upon facts and circumstances if a cause of action under 
     State law is brought based upon the same facts and 
     circumstances.
       ``(2) Designated decision-maker.--
       ``(A) Appointment.--
       ``(i) In general.--The plan sponsor or named fiduciary of a 
     group health plan shall, in accordance with this paragraph, 
     designate one or more persons to serve as a designated 
     decision-maker with respect to causes of action described in 
     subparagraphs (A) and (B) of paragraph (1), except that--

       ``(I) with respect to health insurance coverage offered in 
     connection with a group health plan, the health insurance 
     issuer shall be the designated decision-maker unless the plan 
     sponsor and the issuer specifically agree in writing (on a 
     form to be prescribed by the Secretary) to substitute another 
     person as the designated decision-maker; or
       ``(II) with respect to the designation of a person other 
     than a plan sponsor or health insurance issuer, such person 
     shall satisfy the requirements of subparagraph (D).

       ``(ii) Plan documents.--The designated decision-maker shall 
     be specifically designated as such in the written instruments 
     of the plan (under section 402(a)) and be identified as 
     required under section 121(b)(14) of the Bipartisan Patient 
     Protection Act.
       ``(B) Authority.--A designated decision-maker appointed 
     under subparagraph (A) shall have the exclusive authority 
     under the group health plan--
       ``(i) to make determinations with respect to a claim for 
     benefits under section 102 of the Bipartisan Patient 
     Protection Act (relating to an initial claim for benefits);
       ``(ii) to make final determinations under section 103 of 
     such Act (relating to an internal appeal); or
       ``(iii) to approve coverage pursuant to the written 
     determination of independent medical reviewers under section 
     104 of such Act.
       ``(C) Allocation of responsibility.--Responsibility may be 
     allocated among different designated decision-makers with 
     respect to--
       ``(i) for purposes of paragraph (1)(A), the approval of 
     coverage under section 104 of the Bipartisan Patient 
     Protection Act;
       ``(ii) for purposes of paragraph (1)(B), making 
     determinations on a claim for benefits under section 102 of 
     such Act (relating to an initial claim for benefits); and
       ``(iii) for purposes of paragraph (1)(B), making final 
     determinations on claims for benefits under section 103 of 
     such Act (relating to internal appeals),

     except that not more than one designated decision-maker may 
     be appointed with respect to each level of review under 
     clauses (i), (ii), and (iii). Where such an allocation is 
     made, liability under a cause of action under paragraph (1) 
     shall be assessed against the appropriate designated 
     decision-maker.
       ``(D) Qualifications.--
       ``(i) Certification of ability.--To be appointed as a 
     designated decision-maker under this paragraph, a person 
     shall provide to the plan sponsor or named fiduciary a 
     certification of such person's ability to meet the 
     requirements of clause (ii) relating to financial obligation 
     for liability under this subsection. Such certification shall 
     be provided upon appointment and not less frequently than 
     annually thereafter, or if the designation is pursuant to a 
     multi-year contract, in conjunction with the renewal of the 
     contract, but in no case less than once every 3 years.
       ``(ii) Other requirements relating to financial 
     obligations.--For purposes of clause (i), requirements 
     relating to financial obligation for liability shall include 
     evidence of--

       ``(I) coverage of the person under insurance policies or 
     other arrangements, secured and maintained by the person, to 
     insure the person against losses arising from professional 
     liability claims, including those arising from being 
     designated as a designated decision-maker under this 
     paragraph; or
       ``(II) minimum capital and surplus levels that are 
     maintained by the person to cover any losses as a result of 
     liability arising from being designated as a designated 
     decision-maker under this paragraph.

     The appropriate amounts of liability insurance and minimum 
     capital and surplus levels for purposes of subclauses (I) and 
     (II) shall be determined by an actuary using sound actuarial 
     principles and accounting practices pursuant to established 
     guidelines of the American Academy of Actuaries and shall be 
     maintained throughout the course of the contract in which 
     such person is designated as a designated decision-maker.
       ``(E) Flexibility in administration.--A group health plan, 
     or health insurance issuer offering health insurance coverage 
     in connection with a group health plan, may provide--
       ``(i) that any person or group of persons may serve in more 
     than one capacity with respect to the plan or coverage 
     (including service as a designated decision-maker, 
     administrator, and named fiduciary); or
       ``(ii) that a designated decision-maker may employ one or 
     more persons to provide advice with respect to any 
     responsibility of such decision-maker under the plan or 
     coverage.
       ``(F) Failure to appoint.--
       ``(i) In general.--With respect to any cause of action 
     under paragraph (1) relating to a denial of a claim for 
     benefits where a designated decision-maker has not been 
     appointed in accordance with this paragraph, the plan sponsor 
     or named fiduciary responsible for determinations under 
     section 503 shall be deemed to be the designated decision-
     maker.
       ``(ii) Limitation on appointment.--A treating health care 
     professional who directly delivered the care, treatment, or 
     provided the patient service that is the subject of an action 
     under this subsection may not be designated as a designated 
     decision-maker under this paragraph unless the professional--

       ``(I) is a person or entity that may be appointed in 
     accordance with subparagraph (A); and
       ``(II) specifically agrees to accept such appointment in 
     accordance with the requirements under such subparagraph.

       ``(3) Requirement of exhaustion of independent medical 
     review.--
       ``(A) In general.--Paragraph (1) shall apply only if a 
     final determination denying a claim for benefits under 
     section 103 of the Bipartisan Patient Protection Act has been 
     referred for independent medical review under section 104(d) 
     of such Act and a written determination by an independent 
     medical reviewer to reverse such final determination has been 
     issued with respect to such review or where the coverage for 
     the benefit involved is approved after the denial is referred 
     to the independent medical reviewer but prior to the 
     determination of the reviewer under such section.


       ``(B) Exception to exhaustion for needed care.--A 
     participant or beneficiary may seek relief under subsection 
     502(a)(1)(B) prior to the exhaustion of administrative 
     remedies under section 103 or 104 of the Bipartisan Patient 
     Protection Act (as required under subparagraph (A)) if it is 
     demonstrated to the court, by a preponderance of the 
     evidence, that the exhaustion of such remedies would cause 
     irreparable harm to the health of the participant or 
     beneficiary. Any determinations that already have been made 
     under section 102, 103, or 104 of such Act in such case, or 
     that are made in such case while an action under this 
     subparagraph is pending, shall be given due consideration by 
     the court in any action under this subsection in such case. 
     Notwithstanding the awarding of relief under subsection 
     502(a)(1)(B) pursuant to this subparagraph, no relief shall 
     be available under--
       ``(i) paragraph (1), with respect to a participant or 
     beneficiary, unless the requirements of subparagraph (A) are 
     met; or
       ``(ii) subsection (q) unless the requirements of such 
     subsection are met.
       ``(4) Limitations on recovery of damages.--

[[Page 12407]]

       ``(A) Maximum award of noneconomic damages.--The aggregate 
     amount of liability for noneconomic loss in an action under 
     paragraph (1) may not exceed the greater of--
       ``(i) $750,000; or
       ``(ii) an amount equal to 3 times the amount awarded for 
     economic loss.
       ``(B) Increase in amount.--The amount referred to in 
     subparagraph (A)(i) shall be increased or decreased, for each 
     calendar year that ends after December 31, 2002, by the same 
     percentage as the percentage by which the Consumer Price 
     Index for All Urban Consumers (United States city average), 
     published by the Bureau of Labor Statistics, for September of 
     the preceding calendar year has increased or decreased from 
     the such Index for September of 2002.
       ``(C) Several liability.--In the case of any action 
     commenced pursuant to paragraph (1), the designated decision-
     maker shall be liable only for the amount of noneconomic 
     damages attributable to such designated decision-maker in 
     direct proportion to such decision-maker's share of fault or 
     responsibility for the injury suffered by the participant or 
     beneficiary. In all such cases, the liability of a designated 
     decision-maker for noneconomic damages shall be several and 
     not joint.
       ``(D) Treatment of collateral source payments.--
       ``(i) In general.--In the case of any action commenced 
     pursuant to paragraph (1), the total amount of damages 
     received by a participant or beneficiary under such action 
     shall be reduced, in accordance with clause (ii), by any 
     other payment that has been, or will be, made to such 
     participant or beneficiary, pursuant to an order or judgment 
     of another court, to compensate such participant or 
     beneficiary for the injury that was the subject of such 
     action.
       ``(ii) Amount of reduction.--The amount by which an award 
     of damages to a participant or beneficiary for an injury 
     shall be reduced under clause (i) shall be--

       ``(I) the total amount of any payments (other than such 
     award) that have been made or that will be made to such 
     participant or beneficiary to pay costs of or compensate such 
     participant or beneficiary for the injury that was the 
     subject of the action; less
       ``(II) the amount paid by such participant or beneficiary 
     (or by the spouse, parent, or legal guardian of such 
     participant or beneficiary) to secure the payments described 
     in subclause (I).

       ``(iii) Determination of amounts from collateral sources.--
     The reduction required under clause (ii) shall be determined 
     by the court in a pretrial proceeding. At the subsequent 
     trial no evidence shall be admitted as to the amount of any 
     charge, payments, or damage for which a participant or 
     beneficiary--

       ``(I) has received payment from a collateral source or the 
     obligation for which has been assured by a third party; or
       ``(II) is, or with reasonable certainty, will be eligible 
     to receive from a collateral source which will, with 
     reasonable certainty, be assumed by a third party.

       ``(E) Prohibition of award of punitive damages.--
     Notwithstanding any other provision of law, in the case of 
     any action commenced pursuant to paragraph (1), the court may 
     not award any punitive, exemplary, or similar damages against 
     a defendant.
       ``(5) Affirmative defenses.--In the case of any cause of 
     action under paragraph (1), it shall be an affirmative 
     defense that--
       ``(A) the designated decision-maker of a group health plan, 
     or health insurance issuer that offers health insurance 
     coverage in connection with a group health plan, involved did 
     not receive from the participant or beneficiary (or 
     authorized representative) or the treating health care 
     professional (if any), the information requested by the plan 
     or issuer regarding the medical condition of the participant 
     or beneficiary that was necessary to make a determination on 
     a claim for benefits under section 102 of the Bipartisan 
     Patient Protection Act or a final determination on a claim 
     for benefits under section 103 of such Act;
       ``(B) the participant or beneficiary (or authorized 
     representative)--
       ``(i) was in possession of facts that were sufficient to 
     enable the participant or beneficiary (or authorized 
     representative) to know that an expedited review under 
     section 102, 103, or 104 of such Act would have prevented the 
     harm that is the subject of the action; and
       ``(ii) failed to notify the plan or issuer of the need for 
     such an expedited review; or
       ``(C) the qualified external review entity or an 
     independent medical reviewer failed to meet the timelines 
     applicable under section 104 of such Act, or a period of time 
     elapsing after coverage has been authorized.

     Nothing in this paragraph shall be construed to limit the 
     application of any other affirmative defense that may be 
     applicable to the cause of action involved.
       ``(6) Waiver of internal review.--In the case of any cause 
     of action under paragraph (1), the waiver or nonwaiver of 
     internal review under section 103(a)(4) of the Bipartisan 
     Patient Protection Act by the group health plan, or health 
     insurance issuer that offers health insurance coverage in 
     connection with a group health plan, shall not be used in 
     determining liability.
       ``(7) Limitations on actions.--Paragraph (1) shall not 
     apply in connection with any action that is commenced more 
     than 3 years after the date on which the failure described in 
     paragraph (1) occurred.
       ``(8) Protection of the regulation of quality of medical 
     care under state law.--Nothing in this subsection shall be 
     construed to preclude any action under State law against a 
     person or entity for liability or vicarious liability with 
     respect to the delivery of medical care. A claim that is 
     based on or otherwise relates to a group health plan's 
     administration or determination of a claim for benefits (as 
     such term is defined in section 102(e)(2) of the Bipartisan 
     Patient Protection Act and notwithstanding the definition 
     contained in paragraph (10)(B)) shall not be deemed to be the 
     delivery of medical care under any State law for purposes of 
     this section. Any such claim shall be maintained exclusively 
     under section 502.
       ``(9) Construction.--Nothing in this subsection shall be 
     construed as authorizing a cause of action under paragraph 
     (1) for the failure of a group health plan or health 
     insurance issuer to provide an item or service that is 
     specifically excluded under the plan or coverage.
       ``(10) Definitions.--In this subsection:
       ``(A) Authorized representative.--The term `authorized 
     representative' has the meaning given such term in section 
     102(e)(1) of the Bipartisan Patient Protection Act.
       ``(B) Claim for benefits.--Except as provided for in 
     paragraph (8), the term `claim for benefits' shall have the 
     meaning given such term in section 103(e)(2) of the 
     Bipartisan Patient Protection Act, except that such term 
     shall only include claims for which prior authorization is 
     required (as such term is defined in section 151(c)(9) of 
     such Act)).
       ``(C) Group health plan.--The term `group health plan' 
     shall have the meaning given such term in section 733(a). In 
     applying this paragraph, excepted benefits described in 
     section 733(c) shall not be treated as benefits consisting of 
     medical care.
       ``(D) Health insurance coverage.--The term `health 
     insurance coverage' has the meaning given such term in 
     section 733(b)(1). In applying this paragraph, excepted 
     benefits described in section 733(c) shall not be treated as 
     benefits consisting of medical care.
       ``(E) Health insurance issuer.--The term `health insurance 
     issuer' has the meaning given such term in section 733(b)(2).
       ``(F) Ordinary care.--The term `ordinary care' means the 
     care, skill, prudence, and diligence under the circumstances 
     then prevailing that a prudent individual acting in a like 
     capacity and familiar with such matters would use in making a 
     determination on a claim for benefits of a similar character.
       ``(G) Substantial harm.--The term `substantial harm' means 
     the loss of life, loss or significant impairment of limb or 
     bodily function, significant mental illness or disease, 
     significant disfigurement, or severe and chronic physical 
     pain.''.
       (b) Authority to Impose Civil Penalties for Failure to 
     Provide a Plan Benefit Not Eligible for Medical Review.--
     Section 502 of the Employee Retirement Income Security Act of 
     1974 (29 U.S.C. 1132), as amended by subsection (a), is 
     further amended by adding at the end the following:
       ``(o) Authority to Impose Civil Penalties for Failure to 
     Provide a Plan Benefit Not Eligible for Medical Review.--In 
     connection with any action maintained under subsection 
     (a)(1)(B), the court, in its discretion, may assess a civil 
     penalty against the designated decision-maker (as designated 
     pursuant to section 502(n)(2)) of a group health plan or a 
     health insurance issuer (that offers health insurance 
     coverage in connection with a group health plan) of not to 
     exceed $100,000 where--
       ``(1) in its final determination under section 103(d)(2) of 
     the Bipartisan Patient Protection Act, the designated 
     decision-maker fails to provide, or authorize coverage of, a 
     benefit to which a participant or beneficiary is entitled 
     under the terms and conditions of the plan;
       ``(2) the participant or beneficiary has appealed such 
     determination under section 104 of such Act and such 
     determination is not subject to independent medical review as 
     determined by a qualified external review entity under 
     section 104(c)(3)(A) of such Act;
       ``(3) the plan has failed to exercise ordinary care in 
     making a final determination under section 103(d)(2) of such 
     Act denying a claim for benefits under the plan; and
       ``(4) that denial is the proximate cause of substantial 
     harm (as defined in subsection (n)(10)(G)) the participant or 
     beneficiary.''.
       (c) Limitation on Certain Class Action Litigation.--
       (1) ERISA.--Section 502 of the Employee Retirement Income 
     Security Act of 1974 (29 U.S.C. 1132), as amended by 
     subsections (a) and (b), is further amended by adding at the 
     end the following:
       ``(p) 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,

[[Page 12408]]

     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 Patient Protection Act. This 
     subsection shall apply to civil actions that are pending and 
     have not been finally determined by judgment or settlement 
     prior to such date of enactment.''.
       (2) RICO.--Section 1964(c) of title 18, United States Code, 
     is amended--
       (1) by inserting ``(1)'' after the subsection designation; 
     and
       (2) by adding at the end the following:
       ``(2)(A) No action may be brought under this subsection, or 
     alleging any violation of section 1962, where the action 
     seeks relief concerning the manner in which any person has 
     marketed, provided information concerning, established, 
     administered, or otherwise operated a group health plan, or 
     health insurance coverage in connection with a group health 
     plan. Any such action shall only be brought under the 
     Employee Retirement Income Security Act of 1974. In this 
     paragraph, the terms `group health plan' and `health 
     insurance issuer' shall have the meanings given such terms in 
     section 733 of the Employee Retirement Income Security Act of 
     1974.
       ``(B) Subparagraph (A) shall apply to civil actions that 
     are pending and have not been finally determined by judgment 
     or settlement prior to the date of enactment of the 
     Bipartisan Patient Protection Act and all actions commenced 
     on or after such date.''.
       (d) Conforming Amendment.--Section 502(a)(1)(A) of the 
     Employee Retirement Income Security Act of 1974 (29 U.S.C. 
     1132(a)(1)(A)) is amended by inserting ``or (n)'' after 
     ``subsection (c)''.
       (e) Effective Date.--The amendments made by this section 
     shall apply to acts and omissions (from which a cause of 
     action arises) occurring on or after October 1, 2002.
                                  ____

  SA 833. Mr. WARNER 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 154, between lines 2 and 3, insert the following:
       ``(11) Limitation on award of attorneys' fees.--
       ``(A) In general.--Subject to subparagraph (C), with 
     respect to a participant or beneficiary (or the estate of 
     such participant or beneficiary) who brings a cause of action 
     under this subsection and prevails in that action, the amount 
     of attorneys' fees that a court may award to such 
     participant, beneficiary, or estate under subsection (g)(1) 
     (not including the reimbursement of actual out-of-pocket 
     expenses of an attorney as approved by the court in such 
     action) may not exceed the sum of the amounts described in 
     subparagraph (B).
       ``(B) Amounts described.--For purposes of subparagraph (A), 
     the amounts described in this subparagraph are as follows:
       ``(i) With respect to a recovery in a cause of action 
     described in subparagraph (A) that does not exceed $100,000, 
     the amount of attorneys' fees awarded may not exceed an 
     amount equal to \1/3\ of the amount of the recovery.
       ``(ii) With respect to a recovery in such a cause of action 
     that exceeds $100,000 but does not exceed $500,000, the 
     amount of the attorneys' fees awarded may not exceed an 
     amount equal to 25 percent of such excess recovery above 
     $100,000.
       ``(iii) With respect to a recovery in such a cause of 
     action that exceeds $500,000, the amount of the attorneys' 
     fees awarded may not exceed an amount equal to 15 percent of 
     such excess recovery above $500,000.
       ``(C) Equitable discretion.--A court in its discretion may 
     adjust the amount of an award of attorneys' fees required 
     under subparagraph (A) as equity and the interests of justice 
     may require.
       On page 170, between lines 21 and 22, insert the following:
       ``(9) Limitation on attorneys' fees.--
       ``(A) In general.--Notwithstanding any other provision of 
     law, or any arrangement, agreement, or contract regarding 
     attorneys' fees, subject to subparagraph (B), a court shall 
     limit the amount of attorneys' fees that may be incurred for 
     the representation of a participant or beneficiary (or the 
     estate of such participant or beneficiary) who brings a cause 
     of action under paragraph (1) to the amount of attorneys' 
     fees that may be awarded under section 502(n)(11).
       ``(B) Equitable discretion.--A court in its discretion may 
     adjust the amount of attorneys' fees allowed under 
     subparagraph (A) as equity and the interests of justice may 
     require.''
                                  ____

  SA 834. Ms. SNOWE (for herself, Mrs. Lincoln, Mr. DeWine, Mr. Nelson 
of Nebraska, Mr. Specter, Mr. McCain, Mr. Baucus, Ms. Stabenow, and Mr. 
Chafee) 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 106, between lines 16 and 17, insert the following:
       (19) Designated decisionmakers.--A description of the 
     participants and beneficiaries with respect to whom each 
     designated decisionmaker under the plan has assumed liability 
     under section 502(o) of the Employee Retirement Income 
     Security Act of 1974 and the name and address of each such 
     decisionmaker.
       On page 141, strike lines 16 through 21, and insert the 
     following: ``tions of the plan or coverage, and''.
       On page 142, lines 10 and 11, strike ``or the failure 
     described in clause (ii)''.
       On page 143, strike lines 12 through 18, and insert the 
     following: ``benefits of like kind to the claims involved.''.
       On page 145, strike lines 15 through 20, and insert the 
     following: ``of a denial of a claim for benefits.''.
       Beginning on page 145, strike line 22 and all that follows 
     through line 6 on page 146, and insert the following:
       ``(i) In general.--For purposes of subparagraph (B), the 
     term `direct participation' means, in connection with a 
     decision described in paragraph (1)(A), the actual making of 
     such decision or the actual exercise of control in making 
     such decision.
       On page 146, line 14, strike ``clause (i) of''.
       On page 146, strike lines 16 through 20, and insert the 
     following: ``or beneficiary, including (but not lim-''.

       On page 148, between lines 23 and 24, insert the following:
       ``(D) Application to certain plans.--
       ``(i) In general.--Notwithstanding any other provision of 
     this subsection, no group health plan described in clause 
     (ii) shall be liable under paragraph (1) for the performance 
     of, or the failure to perform, any non-medically reviewable 
     duty under the plan.
       ``(ii) Definition.--A group health plan described in this 
     clause is--

       ``(I) a group health plan that is self-insured and self 
     administered; or
       ``(II) a group health plan that is maintained by one or 
     more employers or employee organizations described in section 
     3(16)(B)(iii).

       On page 156, between lines 15 and 16, insert the following:
       ``(17) Relief from liability for employer or other plan 
     sponsor by means of designated decisionmaker.--
       ``(A) In general.--Notwithstanding the direct participation 
     (as defined in paragraph (5)(C)(i)) of an employer or plan 
     sponsor, in any case in which there is deemed to be a 
     designated decisionmaker under subparagraph (B) that meets 
     the requirements of subsection (o)(1) for an employer or 
     other plan sponsor--
       ``(i) all liability of such employer or plan sponsor (and 
     any employee thereof acting within the scope of employment) 
     under this subsection in connection with any participant or 
     beneficiary shall be transferred to, and assumed by, the 
     designated decisionmaker, and
       ``(ii) with respect to such liability, the designated 
     decisionmaker shall be substituted for the employer or plan 
     sponsor (or employee) in the action and may not raise any 
     defense that the employer or plan sponsor (or employee) could 
     not raise if such a decisionmaker were not so deemed.
       ``(B) Automatic designation.--A health insurance issuer 
     shall be deemed to be a designated decisionmaker for purposes 
     of subparagraph (A) with respect to the participants and 
     beneficiaries of an employer or plan sponsor, whether or not 
     the employer or plan sponsor makes such a designation, and 
     shall be deemed to have assumed unconditionally all liability 
     of the employer or plan sponsor under such designation in 
     accordance with subsection (o), unless the employer or plan 
     sponsor affirmatively enters into a contract to prevent the 
     service of the designated decisionmaker.
       ``(18) Previously provided services.--
       ``(A) in general.--Except as provided in this paragraph, a 
     cause of action shall not arise under paragraph (1) where the 
     denial involved relates to an item or service that has 
     already been fully provided to the participant or beneficiary 
     under the plan or coverage and the claim relates solely to 
     the subsequent denial of payment for the provision of such 
     item or service.
       ``(B) Exception.--Nothing in subparagraph (A) shall be 
     construed to--
       ``(i) prohibit a cause of action under paragraph (1) where 
     the nonpayment involved results in the participant or 
     beneficiary being unable to receive further items or services 
     that are directly related to the item or service involved in 
     the denial referred to in subparagraph (A) or that are part 
     of a continuing treatment or series of procedures;

[[Page 12409]]

       ``(ii) prohibit a cause of action under paragraph (1) 
     relating to quality of care; or
       ``(iii) limit liability that otherwise would arise from the 
     provision of the item or services or the performance of a 
     medical procedure.
       ``(19) Exemption from personal liability for individual 
     members of boards of directors, joint boards of trustees, 
     etc.--Any individual who is--
       ``(A) a member of a board of directors of an employer or 
     plan sponsor; or
       ``(B) a member of an association, committee, employee 
     organization, joint board of trustees, or other similar group 
     of representatives of the entities that are the plan sponsor 
     of plan maintained by two or more employers and one or more 
     employee organizations;

     shall not be personally liable under this subsection for 
     conduct that is within the scope of employment of the 
     individuals unless the individual acts in a fraudulent manner 
     for personal enrichment.
       ``(o) Requirements for Designated Decisionmakers of Group 
     Health Plans.--
       ``(1) In general.--For purposes of subsection (n)(17) and 
     section 514(d)(9), a designated decisionmaker meets the 
     requirements of this paragraph with respect to any 
     participant or beneficiary if--
       ``(A) such designation is in such form as may be prescribed 
     in regulations of the Secretary,
       ``(B) the designated decisionmaker--
       ``(i) meets the requirements of paragraph (2),
       ``(ii) assumes unconditionally all liability of the 
     employer or plan sponsor involved (and any employee thereof 
     acting within the scope of employment) either arising under 
     subsection (n) or arising in a cause of action permitted 
     under section 514(d) in connection with actions (and failures 
     to act) of the employer or plan sponsor (or employee) 
     occurring during the period in which the designation under 
     subsection (n)(17) or section 514(d)(9) is in effect relating 
     to such participant and beneficiary,
       ``(iii) agrees to be substituted for the employer or plan 
     sponsor (or employee) in the action and not to raise any 
     defense with respect to such liability that the employer or 
     plan sponsor (or employee) may not raise, and
       ``(iv) where paragraph (2)(B) applies, assumes 
     unconditionally the exclusive authority under the group 
     health plan to make medically reviewable decisions under the 
     plan with respect to such participant or beneficiary, and
       ``(C) the designated decisionmaker and the participants and 
     beneficiaries for whom the decisionmaker has assumed 
     liability are identified in the written instrument required 
     under section 402(a) and as required under section 121(b)(19) 
     of the Bipartisan Patient Protection Act.

     Any liability assumed by a designated decisionmaker pursuant 
     to this subsection shall be in addition to any liability that 
     it may otherwise have under applicable law.
       ``(2) Qualifications for designated decisionmakers.--
       ``(A) In general.--Subject to subparagraph (B), an entity 
     is qualified under this paragraph to serve as a designated 
     decisionmaker with respect to a group health plan if the 
     entity has the ability to assume the liability described in 
     paragraph (1) with respect to participants and beneficiaries 
     under such plan, including requirements relating to the 
     financial obligation for timely satisfying the assumed 
     liability, and maintains with the plan sponsor and the 
     Secretary certification of such ability. Such certification 
     shall be provided to the plan sponsor or named fiduciary and 
     to the Secretary upon designation under subsection (n)(17)(B) 
     or section 517(d)(9)(B) and not less frequently than annually 
     thereafter, or if such designation constitutes a multiyear 
     arrangement, in conjunction with the renewal of the 
     arrangement.
       ``(B) Special qualification in the case of certain 
     reviewable decisions.--In the case of a group health plan 
     that provides benefits consisting of medical care to a 
     participant or beneficiary only through health insurance 
     coverage offered by a single health insurance issue, such 
     issuer is the only entity that may be qualified under this 
     paragraph to serve as a designated decisionmaker with respect 
     to such participant or beneficiary, and shall serve as the 
     designated decisionmaker unless the employer or other plan 
     sponsor acts affirmatively to prevent such service.
       ``(3) Requirements relating to financial obligations.--For 
     purposes of paragraph (2)(A), the requirements relating to 
     the financial obligation of an entity for liability shall 
     include--
       ``(A) coverage of such entity under an insurance policy or 
     other arrangement, secured and maintained by such entity, to 
     effectively insure such entity against losses arising from 
     professional liability claims, including those arising from 
     its service as a designated decisionmaker under this part; or
       ``(B) evidence of minimum capital and surplus levels that 
     are maintained by such entity to cover any losses as a result 
     of liability arising from its service as a designated 
     decisionmaker under this part.

     The appropriate amounts of liability insurance and minimum 
     capital and surplus levels for purposes of subparagraphs (A) 
     and (B) shall be determined by an actuary using sound 
     actuarial principles and accounting practices pursuant to 
     established guidelines of the American Academy of Actuaries 
     and in accordance with such regulations as the Secretary may 
     prescribe and shall be maintained throughout the term for 
     which the designation is in effect.
       ``(4) Limitation on appointment of treating physicians.--A 
     treating physician who directly delivered the care, 
     treatment, or provided the patient service that is the 
     subject of a cause of action by a participant or beneficiary 
     under subsection (n) or section 514(d) may not be designated 
     as a designated decisionmaker under this subsection with 
     respect to such participant or beneficiary.
       Beginning on page 161, strike line 14, and all that follows 
     through line 13 on page 162, and insert the following:
       ``(B) Certain causes of action permitted.--Notwithstanding 
     subparagraph (A), paragraph (1) applies with respect to any 
     cause of action that is brought by a participant or 
     beneficiary under a group health plan (or the estate of such 
     a participant or beneficiary) to recover damages resulting 
     from personal injury or for wrongful death against any 
     employer or other plan sponsor maintaining the plan (or 
     against an employee of such an employer or sponsor acting 
     within the scope of employment) if such cause of action 
     arises by reason of a medically reviewable decision, to the 
     extent that there was direct participation by the employer or 
     other plan sponsor (or employee) in the decision.
       On page 162, lines 19 and 20, strike ``(i) or a failure 
     described in subparagraph (B)(ii)''.
       On page 163, line 6, strike ``paragraph (B)(i)'' and insert 
     ``paragraph (B)''.
       On page 163, line 8, strike ``or that'' and all that 
     follows through ``ficiary'' on line 11.
       On page 170, between lines 21 and 22, insert the following:
       ``(9) Relief from liability for employer or other plan 
     sponsor by means of designated decisionmaker.--
       ``(A) In general.--Paragraph (1) shall not apply with 
     respect to any cause of action described in paragraph (1)(A) 
     under State law insofar as such cause of action provides for 
     liability of an employer or plan sponsor (or an employee 
     thereof acting within the scope of employment) with respect 
     to a participant or beneficiary, if with respect to the 
     employer or plan sponsor there is deemed to be a designated 
     decisionmaker that meets the requirements of section 
     502(o)(1) with respect to such participant or beneficiary. 
     Such paragraph (1) shall apply with respect to any cause of 
     action described in paragraph (1)(A) under State law against 
     the designated decisionmaker of such employer or other plan 
     sponsor with respect to the participant or beneficiary.
       ``(B) Automatic designation.--A health insurance issuer 
     shall be deemed to be a designated decisionmaker for purposes 
     of subparagraph (A) with respect to the participants and 
     beneficiaries of an employer or plan sponsor, whether or not 
     the employer or plan sponsor makes such a designation, and 
     shall be deemed to have assumed unconditionally all liability 
     of the employer or plan sponsor under such designation in 
     accordance with subsection (o), unless the employer or plan 
     sponsor affirmatively enters into a contract to prevent the 
     service of the designated decisionmaker.
       ``(10) Previously provided services.--
       ``(A) in general.--Except as provided in this paragraph, a 
     cause of action shall not arise under paragraph (1) where the 
     denial involved relates to an item or service that has 
     already been fully provided to the participant or beneficiary 
     under the plan or coverage and the claim relates solely to 
     the subsequent denial of payment for the provision of such 
     item or service.
       ``(B) Exception.--Nothing in subparagraph (A) shall be 
     construed to--
       ``(i) prohibit a cause of action under paragraph (1) where 
     the nonpayment involved results in the participant or 
     beneficiary being unable to receive further items or services 
     that are directly related to the item or service involved in 
     the denial referred to in subparagraph (A) or that are part 
     of a continuing treatment or series of procedures;
       ``(ii) prohibit a cause of action under paragraph (1) 
     relating to quality of care; or
       ``(iii) limit liability that otherwise would arise from the 
     provision of the item or services or the performance of a 
     medical procedure.
       ``(11) Exemption from personal liability for individual 
     members of boards of directors, joint boards of trustees, 
     etc.--Any individual who is--
       ``(A) a member of a board of directors of an employer or 
     plan sponsor; or
       ``(B) a member of an association, committee, employee 
     organization, joint board of trustees, or other similar group 
     of representatives of the entities that are the plan sponsor 
     of plan maintained by two or more employers and one or more 
     employee organizations;

     shall not be personally liable under this subsection for 
     conduct that is within the scope of employment of the 
     individuals unless the individual acts in a fraudulent manner 
     for personal enrichment.

[[Page 12410]]

     
                                  ____
  SA 835. Mr. BROWNBACK 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 119, between lines 5 and 6, insert the following:

     SEC. 136. PRESERVATION OF THE HIPPOCRATIC OATH.

       (a) In General.--The provisions of any contract or 
     agreement, or the operation of any contract or agreement, 
     between a group health plan or health insurance issuer in 
     relation to health insurance coverage (including any 
     partnership, association, or other organization that enters 
     into or administers such a contract or agreement) and a 
     physician (or group of physicians) shall require that such 
     physician--
       (1) provide notice to each participant, beneficiary, or 
     enrollee that the physician treats of whether or not the 
     physician has taken and upholds the Hippocratic Oath; and
       (2) in the case of a physician who notifies such 
     participant, beneficiary, or enrollee that the physician does 
     not uphold any part of the Oath, disclose the part of the 
     Oath to which he or she does not subscribe.
       (b) Specific Areas of Disclosure.--A physician making a 
     disclosure under subsection (a)(2) shall, in particular, 
     disclose the following:
       (1) That the physician does not hold the patient's health 
     above all other consideration as in accordance with the 
     Hippocratic Oath.
       (2) That in violation of the Hippocratic oath the physician 
     engages in physical relationships with his or her patients.
       (3) That the physician does not preserve the 
     confidentiality of his or her patients, as is required by the 
     Hippocratic Oath.
       (4) That in direct violation of the Hippocratic Oath the 
     physician engages in euthanasia, or suggests council to 
     assist in suicide.
       (5) That the physician, in violation of the Hippocratic 
     Oath, performs abortions.
       (c) Coverage of Other Physicians.--If a participant, 
     beneficiary or enrollee receives a notice under subsection 
     (a) that a physician has not taken or does not uphold the 
     Hippocratic Oath, the group health plan or health insurance 
     issuer involved shall permit such participant, beneficiary or 
     enrollee to select another physician who has taken or does 
     uphold the Oath. The plan or issuer shall provide coverage 
     for the treatment of services provided by a physician 
     selected under the previous sentence regardless of whether 
     such physician is in the plan or coverage network.
       (d) Limitation.--Nothing in this section shall be construed 
     to preempt or supersede any State licensure or scope-of-
     practice law.
                                  ____

  SA 836. Mr. BROWNBACK 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. DEDICATION OF PUNITIVE DAMAGES FOR THE PURCHASE OF 
                   HEALTH INSURANCE COVERAGE.

       (a) Award of Portion of Damages.--
       (1) In general.--If any penalty is assessed, or non-
     economic or punitive damages are awarded with respect to a 
     cause of action under section 502(n) or 514(d) of the 
     Employee Retirement Income Security Act of 1974 (as added by 
     section 302), the court shall award the amount described in 
     paragraph (2) to the State health insurance trust fund 
     established under subsection (b) for the State in which the 
     claim was filed to enable the State to provide refundable tax 
     credits to enable individuals in the State to purchase health 
     insurance coverage.
       (2) Amount.--The amount awarded to a State under paragraph 
     (1) shall consist of--
       (A) any penalty assessed that is not awarded to the 
     aggrieved participant or beneficiary; and
       (B) any non-economic or punitive damages awarded in excess 
     of $2,000,000.
       (b) State Requirements.--
       (1) State health insurance trust fund.--A State that 
     desires to receive payments under subsection (a) shall 
     establish a State health insurance trust fund.
       (2) Refundable tax credit.--
       (A) In general.--The refundable tax credit described in 
     subsection (a)(1) shall--
       (i) be available to any resident of a State who--

       (I) is without access to adequate health insurance through 
     the resident's employer; or
       (II) is from a family with an income that is less that 220 
     percent of the poverty line, is not eligible for benefits 
     under the medicaid program under title XIX of the Social 
     Security Act (42 U.S.C. 1396 et seq.), is not eligible for 
     veteran's health benefits, and is younger than 65 years of 
     age; and

       (ii) be used to provide a benefit for private insurance 
     that includes, at a minimum, catastrophic coverage.
       (B) Time period.--
       (i) In general.--A State shall have in place a refundable 
     tax credit, as described in subsection (a)(1), not later than 
     2 years after the date of enactment of the Bipartisan Patient 
     Protection Act.
       (ii) Transfer of funds.--A State that fails to have a 
     refundable tax credit in place as required by clause (i) 
     shall transfer any funds described in subsection (a)(2) to 
     the National Institutes of Health.
                                  ____

  SA 837. Mr. BROWNBACK 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 I, insert the following:

     SEC. __. IMPROVED FLEXIBILITY FOR EMPLOYERS IN OBTAINING 
                   HEALTH INSURANCE COVERAGE FOR EMPLOYEES.

       (a) Freedom From Employer Liability.--In the case of a 
     group health plan, or health insurance coverage provided by a 
     health insurance issuer, that meets the requirements of 
     subsection (b)--
       (1) an employer maintaining the plan or entering into an 
     arrangement for the coverage provided by the issuer shall not 
     be liable pursuant to any cause of action relating to the 
     provision of (or failure to provide, or manner of provision 
     of) benefits under any health insurance coverage that may be 
     secured by participants, beneficiaries, or enrollees in 
     connection with the plan, or under the coverage provided by 
     the issuer for participants, beneficiaries, or enrollees; and
       (2) there shall be no right of recovery, indemnity, or 
     contribution by a person against such an employer (or an 
     employee of such an employer acting within the scope of 
     employment) for damages assessed against the person pursuant 
     to any such cause of action.
       (b) Requirements.--A group health plan or health insurance 
     coverage provided by a health insurance issuer meets the 
     requirements of this subsection if--
       (1) such plan or coverage provides compensation to 
     employees for personal injuries or sickness, within the 
     meaning of section 106(a) of the Internal Revenue Code of 
     1986;
       (2) under such plan or the arrangement for such coverage, 
     all employer contributions are in the form of payments on 
     behalf of participants, beneficiaries, or enrollees and are 
     placed into a separate trust that forms a part of such plan 
     or the arrangement for such coverage and that meets the 
     additional requirements of subsection (d);
       (3) the assets of such trust consist solely of such 
     employer contributions and any income earned from investment 
     of the contributions;
       (4) the assets of such trust (other than assets used for 
     payment of necessary and reasonable administrative expenses 
     of the trust) are held in such trust for the sole purpose of, 
     and are available for, payment by participants, 
     beneficiaries, or enrollees of premiums for, or otherwise 
     providing for the cost to participants, beneficiaries, or 
     enrollees of--
       (A) health insurance coverage for the participants, 
     beneficiaries, or enrollees that is made available under the 
     plan for acquisition by the participants, beneficiaries, or 
     enrollees and that meets the applicable requirements of law; 
     or
       (B) coverage provided by the issuer for participants, 
     beneficiaries, or enrollees that meets the applicable 
     requirements of law;
       (5) under such plan or arrangement for such coverage, at 
     least 2 alternative and substantially different forms of 
     health insurance coverage are available for acquisition by 
     each participant, beneficiary, or enrollee with assets of the 
     trust attributable to contributions to the trust on behalf of 
     such participant, beneficiary, or enrollee; and
       (6) the participant, beneficiary, or enrollee (and not the 
     employer, plan, or issuer) has a right to the health 
     insurance coverage provided to the participant, beneficiary, 
     or enrollee under the plan or the coverage provided by the 
     issuer.
       (c) Fiduciary Liability.--In the case of any group health 
     plan or health insurance coverage provided by a health 
     insurance issuer that meets the requirements of subsection 
     (b)--
       (1) the trustee of the separate trust referred to in 
     subsection (b)(2) shall be the named fiduciary of the plan or 
     the issuer, with respect to such coverage; and
       (2) such trustee shall be treated, for purposes of title I 
     of the Employee Retirement Income Security Act of 1974 (29 
     U.S.C. 1001 et seq.) and any other applicable provision of 
     law, as the sole and exclusive fiduciary of the plan or the 
     issuer with respect to assets held in such trust.
       (d) Separate Trust Requirements.--
       (1) In general.--A separate trust referred to in subsection 
     (b)(2) meets the requirements of this subsection if each 
     trustee of the trust--
       (A) is not a related party;

[[Page 12411]]

       (B) does not have a material familial, financial, or 
     professional relationship with such a party; and
       (C) does not otherwise have a conflict of interest with 
     such a party (as determined under regulations).
       (2) Exception for reasonable compensation.--Nothing in 
     paragraph (1) shall be construed to prohibit receipt by a 
     trustee of the separate trust of compensation from the plan 
     or issuer for the conduct of the trustee's duties as trustee, 
     except that any such compensation--
       (A) may not exceed a reasonable level; and
       (B) may not be contingent on any decision rendered by the 
     trustee in the exercise of the trustee's duties.
       (3) Related party.--For purposes of this subsection, the 
     term ``related party'' means, in connection with a separate 
     trust forming a part of the plan or the arrangement for such 
     coverage, the plan, the plan sponsor, any health insurance 
     issuer offering the coverage involved, or any fiduciary 
     (except as provided in subsection (c)(2)), officer, director, 
     or employee of such plan, plan sponsor, or issuer.
       (e) Rules of Construction.--
       (1) Additional employee contributions permitted.--The 
     requirements of this section shall not be treated as not met 
     solely because a participant, beneficiary, or enrollee may 
     need to supplement employer contributions provided under the 
     plan or arrangement for coverage for purposes of acquiring 
     health insurance coverage, in order to acquire such coverage.
       (2) Liability of other parties unaffected.--Nothing in this 
     section shall be construed to affect any cause of action in 
     connection with the health insurance coverage referred to in 
     subsection (a)(1) against the plan sponsor or health 
     insurance issuer providing such coverage or any other party 
     (other than the employer).
       (f) Definitions.--The definitions contained in section 2791 
     of the Public Health Service Act (42 U.S.C. 300gg-91) shall 
     apply for purposes of this section.
       (g) Regulations.--The Secretary of Health and Human 
     Services, the Secretary of Labor, and the Secretary of the 
     Treasury may issue such regulations as are necessary to carry 
     out the provisions of this section. Such regulations shall be 
     issued consistent with section 104 of the Health Insurance 
     Portability and Accountability Act of 1996 (42 U.S.C. 300gg-
     92 note).
                                  ____

  SA 838. 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 paragraph (1), (2), 
     or (3) of subsection (b), in the form of a notice provided 
     not later than 30 days before the date on which the reduction 
     takes effect; and
       (iv) of the additional information described in subsection 
     (c).
       (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) Disenrollment.--Information relating to the 
     disenrollment of a participant, beneficiary, or enrollee.
       (2) 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.
       (3) 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.
       (4) 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), and 
     through other, easily accessible means, including 
     electronically via the Internet, 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.

[[Page 12412]]

       (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) 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 839. Mrs. HUTCHISON (for herself and Mrs. Clinton) 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; as follows:

       On page 101, between lines 14 and 15, insert the following:
       (3) Disenrollment.--Information relating to the 
     disenrollment of a participant, beneficiary, or enrollee.
                                  ____

  SA 840. Mr. ENZI 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 172, between lines 15 and 16, insert the following:

     SEC. 304. IMMUNITY FROM LIABILITY FOR PROVISION OF INSURANCE 
                   OPTIONS.

       (a) In general.--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:
       ``(p) Immunity from Liability for Provision of Insurance 
     Options.--
       ``(1) In general.--No liability shall arise under 
     subsection (n) with respect to a participant or beneficiary 
     against a group health plan described in paragraph (4) if 
     such plan offers the participant or beneficiary the coverage 
     option described in paragraph (2).
       ``(2) Coverage option.--The coverage option described in 
     this paragraph is one under which the group health plan, at 
     the time of enrollment or as provided for in paragraph (3), 
     provides the participant or beneficiary with the option to--
       ``(A) enroll for coverage under a fully insured health 
     plan; or
       ``(B) receive an individual benefit payment, in an amount 
     equal to the amount that would be contributed on behalf of 
     the participant or beneficiary by the plan sponsor for 
     enrollment in the group health plan (as determined by the 
     plan actuary, including factors relating to participant or 
     beneficiary's age and health status), for use by the 
     participant or beneficiary in obtaining health insurance 
     coverage in the individual market.
       ``(3) Time of offering of option.--The coverage option 
     described in paragraph (2) shall be offered to a participant 
     or beneficiary--
       ``(A) during the first period in which the individual is 
     eligible to enroll under the group health plan; or
       ``(B) during any special enrollment period provided by the 
     group health plan after the date of enactment of the 
     Patients' Bill of Rights Plus Act for purposes of offering 
     such coverage option.
       ``(4) Group health plan described.--A group health plan 
     described in this paragraph is a group health plan that is 
     self-insured and self-administered prior to the general 
     effective date described in section 401(a)(1) of the 
     Bipartisan Patient Protection Act.''.
       (b) Amendments to Internal Revenue Code.--
       (1) Exclusion from income.--Section 106 of the Internal 
     Revenue Code of 1986 (relating to contributions by employer 
     to accident and health plans) is amended by adding at the end 
     the following:
       ``(d) Treatment of Certain Coverage Option Under Self-
     Insured Plans.--No amount shall be included in the gross 
     income of an individual by reason of--
       ``(1) the individual's right to elect a coverage option 
     described in section 502(o)(2) of the Employee Retirement 
     Income Security Act of 1974, or
       ``(2) the receipt by the individual of an individual 
     benefit payment described in section 502(o)(2)(A) of such 
     Act.''
       (2) Nondiscrimination rules.--Section 105(h) of such Code 
     (relating to self-insured medical expense reimbursement 
     plans) is amended by adding at the end the following:
       ``(11) Treatment of certain coverage options.--If a self-
     insured medical reimbursement plan offers the coverage option 
     described in section 502(o)(2) of the Employee Retirement 
     Income Security Act of 1974, employees who elect such option 
     shall be treated as eligible to benefit under the plan and 
     the plan shall be treated as benefiting such employees.''
                                  ____

  SA 841. Mr. SANTORUM 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:


[[Page 12413]]

       At the end, add the following:

     SEC. __. REFUNDABLE TAX CREDITS FOR THE UNINSURED FINANCED 
                   WITH CERTAIN CIVIL MONETARY PENALTIES.

       (a) Payment of Certain Penalties to Secretary of the 
     Treasury.--
       (1) In general.--Notwithstanding any other provision of 
     law, 75 percent of any civil monetary penalty in any 
     proceeding allowed under any provision of, or amendment made 
     by, this Act may only be awarded to the Secretary of the 
     Treasury.
       (2) Civil monetary penalty.--For purposes of this section, 
     the term ``civil monetary penalty'' means damages awarded for 
     the purpose of punishment or deterrence, and not solely for 
     compensatory purposes. Such term includes exemplary and 
     punitive damages or any similar damages which function as 
     civil monetary penalties. Such term does not include either 
     economic or non-economic losses. Such term does not include 
     the portion of any award of damages that is not payable to a 
     party or the attorney for a party pursuant to applicable 
     State law.
       (b) Establishment of Trust Fund.--
       (1) In general.--Subchapter A of chapter 98 of the Internal 
     Revenue Code of 1986 (relating to trust fund code) is amended 
     by adding at the end the following new section:

     ``SEC. 9511. HEALTH INSURANCE REFUNDABLE CREDITS TRUST FUND.

       ``(a) Creation of Trust Fund.--There is hereby established 
     in the Treasury of the United States a trust fund to be known 
     as the `Health Insurance Refundable Credits Trust Fund', 
     consisting of such amounts as may be--
       ``(1) appropriated to such Trust Fund as provided in this 
     section, or
       ``(2) credited to such Trust Fund as provided in section 
     9602(b).
       ``(b) Transfer to Trust Fund of Amounts Equivalent to 
     Certain Awards.--There are hereby appropriated to the Health 
     Insurance Refundable Credits Trust Fund amounts equivalent to 
     the awards received by the Secretary of the Treasury under 
     section __(a) of the Bipartisan Patient Protection Act.
       ``(c) Expenditures From Trust Fund.--Amounts in the Health 
     Insurance Refundable Credits Trust Fund shall be available to 
     fund the appropriations under paragraph (2) of section 
     1324(b) of title 31, United States Code, with respect to any 
     refundable tax credit to assist uninsured individuals and 
     families with the purchase of health insurance under this 
     title.''.
       (2) Clerical amendment.--The table of sections for 
     subchapter A of chapter 98 of the Internal Revenue Code of 
     1986 is amended by adding at the end the following new item:

``9511. Health Insurance Refundable Credits Trust Fund.''.

       (3) Effective date.--The amendments made by this subsection 
     shall take effect on the date of the enactment of this Act.
                                  ____

  SA 842. 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; as follows:

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

     SEC. 303. LIMITATION ON CERTAIN CLASS ACTION LITIGATION.

       (a) ERISA.--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 January 1, 2002.''.
       (b) RICO.--Section 1964(c) of title 18, United States Code, 
     is amended--
       (1) by inserting ``(1)'' after the subsection designation; 
     and
       (2) by adding at the end the following:
       ``(2)(A) No private action may be brought under this 
     subsection, or alleging any violation of section 1962, where 
     the action seeks relief concerning the manner in which any 
     person has marketed, provided information concerning, 
     established, administered, or otherwise operated a group 
     health plan, or health insurance coverage in connection with 
     a group health plan. Any such action shall only be brought 
     under the Employee Retirement Income Security Act of 1974. In 
     this paragraph, the terms `group health plan' and `health 
     insurance issuer' shall have the meanings given such terms in 
     section 733 of the Employee Retirement Income Security Act of 
     1974.
       ``(B) Subparagraph (A) shall apply to private civil actions 
     that are filed on or after January 1, 2002.''.
                                  ____

  SA 843. Mr. GRAMM (for himself and Mr. McCAIN) 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:

       Insert at the appropriate place:
       Notwithstanding any other provision of this act, any 
     exclusion of an exact medical procedure, any exact time limit 
     on the duration or frequency of coverage, and any exact 
     dollar limit on the amount of coverage that is specifically 
     enumerated and defined in the plain language of the plan or 
     coverage documents under the plan or coverage offered by a 
     group health plan or health insurance issuer offering health 
     insurance coverage and that is disclosed under section 
     121(b)(1) shall be considered to govern the scope of the 
     benefits that may be required, provided that the terms and 
     conditions of the plan or coverage relating to such an 
     exclusion or limit are in compliance with the requirements of 
     law.
                                  ____

  SA 844. Mr. SPECTER 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 153, strike line 9 and all that follows through 
     page 154, line 2, and insert the following:
       ``(10) Statutory damages.--The remedies set forth in this 
     subsection (n) shall be the exclusive remedies for causes of 
     action brought under this subsection. In such actions, the 
     court shall apply the tort laws of the State in determining 
     damages. If such damages are not limited under State law in 
     actions brought under this subsection against a group health 
     plan (and a health insurance issuer offering group health 
     insurance coverage in connection with such a plan), then 
     State law limiting such damages in actions brought against 
     health care entities shall apply until such State enacts 
     legislation imposing such limits against group health plans 
     (and issuers). Nothing in this section shall be construed to 
     require a State to enact legislation imposing limits on 
     damages in actions against group health plans and issuers.
       On page 160, between lines 2 and 3, insert the following:
       ``(D) Actions in federal court.--A cause of action 
     described in subparagraph (A) shall be brought and maintained 
     only in the Federal district court for the district in the 
     State in which the alleged injury or death that is the 
     subject of such action occurred. In any such action, the 
     court shall apply the laws of such State in determining 
     liability and damages. If such State limits the amount of 
     damages that a plaintiff may receive, such limits shall apply 
     in such actions.
       On page 156, strike lines 15 and 16 and insert the 
     following:
     subsection.
       ``(o) Limitation on Class Action Litigation.--
       ``(1) Limitation.--
       ``(A) 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 action claimant, or the group of claimants is 
     limited to the participants, beneficiaries, or enrollees with 
     respect to a group health plan established by only 1 plan 
     sponsor or with respect to coverage provided by only 1 
     issuer. No action maintained by such class, such derivative 
     action claimant, or such group of claimants may be joined in 
     the same proceeding with any action maintained by another 
     class, derivative action claimant, or group of claimants or 
     consolidated for any purpose with any other proceeding.
       ``(B) Definitions.--In this paragraph, the terms `group 
     health plan' and `health insurance coverage' have the 
     meanings given such terms in section 733.
       ``(2) Effective date.--Paragraph (1) shall apply to all 
     actions that are pending and have not been finally determined 
     by judgment or settlement prior to the date of enactment of 
     the Bipartisan Patient Protection Act, and all actions that 
     are filed not earlier than that date.''.
       (2) Racketeer influenced and corrupt organizations act.--
     Section 1964(c) of title 18, United States Code, is amended--
       (A) by inserting ``(1)'' after the subsection designation; 
     and

[[Page 12414]]

       (B) by adding at the end the following:
       ``(2)(A)(i) No action may be brought under this subsection, 
     or alleging any violation of section 1962, if the action 
     seeks relief concerning the manner in which any person has 
     marketed, provided information concerning, established, 
     administered, or otherwise operated or provided a group 
     health plan, or health insurance coverage issued in 
     connection with a group health plan. Any such action shall 
     only be brought under the Employee Retirement Income Security 
     Act of 1974.
       ``(ii) In this subparagraph, the terms `group health plan' 
     and `health insurance issuer' have the meanings given such 
     terms in section 733 of the Employee Retirement Income 
     Security Act of 1974.
       ``(B) Subparagraph (A) shall apply to actions that are 
     pending and have not been finally determined by judgment or 
     settlement prior to the date of enactment of the Bipartisan 
     Patient Protection Act, and all actions that are filed not 
     earlier than that date.''.
       (3) Conforming amendment.--Section
                                  ____

  SA 845. Mr. GRASSLEY 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 179, strike lines 1 through 14.
                                  ____

  SA 846. Mr. NICKLES (for himself and Mr. Ensign) 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 173, strike line 19 and all that follows 
     through line 14 on page 174, and insert the following:
       (2) Treatment of collective bargaining agreements.--The 
     amendments made by sections 201(a), 301, 302, and 303 (and 
     title I insofar as it relates to such sections) shall apply 
     to group health plans maintained pursuant to one or more 
     collective bargaining agreements between employee 
     representatives and one or more employers beginning on the 
     general effective date.
                                  ____

  SA 847. Mr. BROWNBACK 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:

       At the end of the bill, add the following:
              TITLE   --HUMAN--GERMLINE GENE MODIFICATION

     SEC.    01. SHORT TITLE.

       This title may be cited as the ``Human Germline Gene 
     Modification Prohibition Act of 2001''.

     SEC.    02. FINDINGS.

       Congress makes the following findings:
       (1) Human Germline gene modification is not needed to save 
     lives, or alleviate suffering, of existing people. Its target 
     population is ``prospective people'' who have not been 
     conceived.
       (2) The cultural impact of treating humans as biologically 
     perfectible artifacts would be entirely negative. People who 
     fall short of some technically achievable ideal would be seen 
     as ``damaged goods'', while the standards for what is 
     genetically desirable will be those of the society's 
     economically and politically dominant groups. This will only 
     increase prejudices and discrimination in a society where too 
     many such prejudices already exist.
       (3) There is no way to be accountable to those in future 
     generations who are harmed or stigmatized by wrongful or 
     unsuccessful human germline modifications of themselves or 
     their ancestors.
       (4) The negative effects of human germline manipulation 
     would not be fully known for generations, if ever, meaning 
     that countless people will have been exposed to harm probably 
     often fatal as the result of only a few instances of germline 
     manipulations.
       (5) All people have the right to have been conceived, 
     gestated, and born without genetic manipulation.

     SEC.    03. PROHIBITION ON HUMAN GERMLINE GENE MODIFICATION

       (a) In General.--Title 18, United States Code, is amended 
     by inserting after chapter 15, the following:

                ``Chapter 16--Germline Gene Modification

``Sec.
``301. Definitions
``302. Prohibition on germline gene modification.

     ``Sec. 301. Definitions

       ``In this chapter:
       (1) Human germline gene modification.--The term `human 
     germline modification' means the intentional modification of 
     DNA in any human cell (including human eggs, sperm, 
     fertilized eggs, zygotes, blastocysts, embryos, or any 
     precursor cells that will differentiate into gametes or can 
     be manipulated to do so) for the purpose of producing a 
     genetic change which can be passed on to future individuals, 
     including inserting, deleting or altering DNA from any 
     source, and in any form, such as nuclei, chromosomes, 
     nuclear, mitochondrial, and synthetic DNA. The term does not 
     include any modification of cells that are not a part of and 
     will not be used to create human embryos. Nor does it include 
     the change of DNA involved in the normal process of sexual 
     reproduction.
       ``(2) Human haploid cell.--The term `haploid cell' means a 
     cell that contains only a single copy of each of the human 
     chromosomes, such as eggs, sperm, and their precursors.
       ``(3) Somatic cell.--The term `somatic cell' means a 
     diploid cell (having two sets of the chromosomes of almost 
     all body cells) obtained or derived from a living or deceased 
     human body at any stage of development. Somatic cells are 
     diploid cells that are not precursors of either eggs or 
     sperm. A genetic modification of somatic cells is therefore 
     not germline genetic modification.
       Rule of construction: Nothing in this Act is intended to 
     limit somatic cell gene therapy, or to effect research 
     involving human pluripotent stem cells.

     ``Sec. 302. Prohibition on germline gene modification

       ``(a) In General.--It shall be unlawful for any person or 
     entity, public or private, in or affecting interstate 
     commerce--
       ``(1) to perform or attempt to perform human germline gene 
     modification;
       ``(2) to intentionally participate in an attempt to perform 
     human germline gene modification; or
       ``(3) to ship or receive the product of human germline gene 
     modification for any purpose.
       ``(b) Importation.--It shall be unlawful for any person or 
     entity, public or private, to import the product of human 
     germline gene modification for any purpose.
       ``(c) Penalties.--
       ``(1) In general.--Any person or entity that is convicted 
     of violating any provision of this section shall be fined 
     under this section or imprisoned not more than 10 years, or 
     both.
       ``(2) Civil penalty.--Any person or entity that is 
     convicted of violating any provision of this section shall be 
     subject to, in the case of a violation that involves the 
     derivation of a pecuniary gain, a civil penalty of not less 
     than $1,000,000 and not more than an amount equal to the 
     amount of the gross gain multiplied by 2, if that amount is 
     greater than $1,000,000.
       ``(b) Clerical Amendment.--The table of chapters for part I 
     of title 18, United States Code, is amended by inserting 
     after the item relating to chapter 15 the following:
301''.rmline Gene Modification.......................................
                                  ____


  SA 848. Mr. ENSIGN 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:

       At the end, add the following:

     SEC. __. IMMUNITY.

       (a) In General.--Notwithstanding any other provision of 
     law, no health care professional shall be liable for the 
     performance of, or the failure to perform, any duty in 
     providing pro bono medical services to a medically 
     underserved or indigent individual.
       (b) Definitions.--In this section:
       (1) Health care professional.--The term ``health care 
     professional'' has the meaning given the term in section 151.
       (2) Medically underserved or indigent individual.--The term 
     ``medically underserved or indigent individual'' means an 
     individual that does not have health care coverage under a 
     group health plan, health insurance coverage, or any other 
     health care coverage program, or who is unable to pay for the 
     health care services that are provided to the individual.
                                  ____

  SA 849. Mr. ENSIGN 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:

       Subtitle C of title I is amended by adding at the end the 
     following:

     SEC. 122. GENETIC INFORMATION.

       (a) Definitions.--In this section:
       (1) Controlled group.--The term ``controlled group'' means 
     any group treated as a single employer under subsection (b), 
     (c), (m), or (o) of section 414 of the Internal Revenue Code 
     of 1986.
       (2) Family member.--The term ``family member'' means with 
     respect to an individual--
       (A) the spouse of the individual;
       (B) a dependent child of the individual, including a child 
     who is born to or placed for adoption with the individual; 
     and
       (C) all other individuals related by blood to the 
     individual or the spouse or child described in subparagraph 
     (A) or (B).
       (3) Genetic information.--The term ``genetic information'' 
     means information about

[[Page 12415]]

     genes, gene products, or inherited characteristics that may 
     derive from an individual or a family member of such 
     individual (including information about a request for or the 
     receipt of genetic services by such individual or a family 
     member of such individual).
       (4) Genetic services.--The term ``genetic services'' means 
     health services, including genetic tests, provided to obtain, 
     assess, or interpret genetic information for diagnostic and 
     therapeutic purposes, and for genetic education and 
     counseling.
       (5) Genetic test.--The term ``genetic test'' means the 
     analysis of human DNA, RNA, chromosomes, proteins, and 
     certain metabolites in order to detect genotypes, mutations, 
     or chromosomal changes.
       (6) Group health plan, health insurance issuer.--The terms 
     ``group health plan'' and ``health insurance issuer'' include 
     a third party administrator or other person acting for or on 
     behalf of such plan or issuer.
       (7) Predictive genetic information.--
       (A) In general.--The term ``predictive genetic 
     information'' means--
       (i) information about an individual's genetic tests;
       (ii) information about genetic tests of family members of 
     the individual; or
       (iii) information about the occurrence of a disease or 
     disorder in family members.
       (B) Limitations.--The term ``predictive genetic 
     information'' shall not include--
       (i) information about the sex or age of the individual;
       (ii) information about chemical, blood, or urine analyses 
     of the individual, unless these analyses are genetic tests; 
     or
       (iii) information about physical exams of the individual, 
     and other information relevant to determining the current 
     health status of the individual.
       (b) Nondiscrimination.--
       (1) No enrollment restriction for genetic services.--A 
     group health plan, and a health insurance issuer offering 
     health insurance coverage, shall not establish rules for 
     eligibility (including continued eligibility) of any 
     individual to enroll under the terms of the plan based on 
     genetic information (or information about a request for or 
     the receipt of genetic services by such individual or a 
     family member of such individual) in relation to the 
     individual or a dependent of the individual.
       (2) No discrimination in group rate based on predictive 
     genetic information.--A group health plan, and a health 
     insurance issuer offering health insurance coverage, shall 
     not deny eligibility to a group or adjust premium or 
     contribution rates for a group on the basis of predictive 
     genetic information concerning an individual in the group (or 
     information about a request for or the receipt of genetic 
     services by such individual or a family member of such 
     individual).
       (3) Limitation on genetic testing.--
       (A) Limitation on requesting or requiring genetic 
     testing.--A group health plan, or a health insurance issuer 
     offering health insurance coverage, shall not request or 
     require an individual or a family member of such individual 
     to undergo a genetic test.
       (B) Rule of construction.--Nothing in this section shall be 
     construed to limit the authority of a health care 
     professional, who is providing treatment with respect to an 
     individual and who is employed by a group health plan or a 
     health insurance issuer, to request that such individual or 
     family member of such individual undergo a genetic test. Such 
     a health care professional shall not require that such 
     individual or family member undergo a genetic test.
       (4) Collection of predictive genetic information.--Except 
     as provided in subsections (c) and (d), a group health plan, 
     or a health insurance issuer offering health insurance 
     coverage, shall not request, require, collect, or purchase 
     predictive genetic information concerning an individual (or 
     information about a request for or the receipt of genetic 
     services by such individual or a family member of such 
     individual).
       (5) Disclosure of predictive genetic information.--A group 
     health plan, or a health insurance issuer offering health 
     insurance coverage, shall not disclose predictive genetic 
     information about an individual (or information about a 
     request for or the receipt of genetic services by such 
     individual or a family member of such individual) to--
       (A) any entity that is a member of the same controlled 
     group as such issuer or plan sponsor of such group health 
     plan;
       (B) any other group health plan or health insurance issuer 
     or any insurance agent, third party administrator, or other 
     person subject to regulation under State insurance laws;
       (C) the Medical Information Bureau or any other person that 
     collects, compiles, publishes, or otherwise disseminates 
     insurance information;
       (D) the individual's employer or any plan sponsor; or
       (E) any other person the Secretary may specify in 
     regulations.
       (c) Information for Payment for Genetic Services.--
       (1) In general.--With respect to payment for genetic 
     services conducted concerning an individual or the 
     coordination of benefits, a group health plan, or a health 
     insurance issuer offering health insurance coverage, may 
     request that the individual provide the plan or issuer with 
     evidence that such services were performed.
       (2) Rule of construction.--Nothing in paragraph (1) shall 
     be construed to--
       (A) permit a group health plan or health insurance issuer 
     to request (or require) the results of the services referred 
     to in such paragraph; or
       (B) require that a group health plan or health insurance 
     issuer make payment for services described in such paragraph 
     where the individual involved has refused to provide evidence 
     of the performance of such services pursuant to a request by 
     the plan or issuer in accordance with such paragraph.
       (d) Information for Payment of Other Claims.--With respect 
     to the payment of claims for benefits other than genetic 
     services, a group health plan, or a health insurance issuer 
     offering health insurance coverage, may request that an 
     individual provide predictive genetic information so long as 
     such information--
       (1) is used solely for the payment of a claim;
       (2) is limited to information that is directly related to 
     and necessary for the payment of such claim and the claim 
     would otherwise be denied but for the predictive genetic 
     information; and
       (3) is used only by an individual (or individuals) within 
     such plan or issuer who needs access to such information for 
     purposes of payment of a claim.
       (e) Rules of Construction.--
       (1) Collection or disclosure authorized by individual.--The 
     provisions of paragraphs (4) (regarding collection) and (5) 
     of subsection (b) shall not apply to an individual if the 
     individual (or legal representative of the individual) 
     provides prior, knowing, voluntary, and written authorization 
     for the collection or disclosure of predictive genetic 
     information.
       (2) Disclosure for health care treatment.--Nothing in this 
     section shall be construed to limit or restrict the 
     disclosure of predictive genetic information from a health 
     care provider to another health care provider for the purpose 
     of providing health care treatment to the individual 
     involved.
       (f) Violation of Genetic Discrimination or Genetic 
     Disclosure Provisions.--
       (1) In general.--In any action under a covered provision 
     against any administrator of a group health plan, or health 
     insurance issuer offering health insurance coverage 
     (including any third party administrator or other person 
     acting for or on behalf of such plan or issuer) alleging a 
     violation of subsection (b), (c), or (d), the court may award 
     any appropriate legal or equitable relief. Such relief may 
     include a requirement for the payment of attorney's fees and 
     costs, including the costs of expert witnesses.
       (2) Definition.--In this subsection, the term ``covered 
     provision'' means section 502 of the Employee Retirement 
     Income Security Act of 1974 (29 U.S.C. 1132) or section 2722 
     or 2761 of the Public Health Service Act (42 U.S.C. 300gg-2, 
     300gg-61).
       (g) Civil Penalty.--The monetary provisions of section 
     308(b)(2)(C) of Public Law 101-336 (42 U.S.C. 12188(b)(2)(C)) 
     shall apply for purposes of the Secretary enforcing the 
     provisions referred to in subsection (f), except that any 
     such relief awarded shall be paid only into the general fund 
     of the Treasury.
       (h) Special Rule in Case of Genetic Information.--With 
     respect to health insurance coverage offered by a health 
     insurance issuer, the provisions of this section relating to 
     genetic information (including information about a request 
     for or the receipt of genetic services by an individual or a 
     family member of such individual) shall not be construed to 
     supersede any provision of State law that establishes, 
     implements, or continues in effect a standard, requirement, 
     or remedy that more completely--
       (1) protects the confidentiality of genetic information 
     (including information about a request for or the receipt of 
     genetic services by an individual or a family member of such 
     individual) or the privacy of an individual or a family 
     member of the individual with respect to genetic information 
     (including information about a request for or the receipt of 
     genetic services by the individual or a family member of such 
     individual); or
       (2) prohibits discrimination on the basis of genetic 
     information than does this section.
       At the end of title II, insert the following:

     SEC. 203. ELIMINATION OF OPTION OF NON-FEDERAL GOVERNMENTAL 
                   PLANS TO BE EXCEPTED FROM REQUIREMENTS 
                   CONCERNING GENETIC INFORMATION.

       Section 2721(b)(2) of the Public Health Service Act (42 
     U.S. C. 300gg-21(b)(2)) is amended--
       (1) in subparagraph (A), by striking ``If the plan 
     sponsor'' and inserting ``Except as provided in subparagraph 
     (D), if the plan sponsor''; and
       (2) by adding at the end the following:
       ``(D) Election not applicable to requirements concerning 
     genetic information.--The election described in subparagraph 
     (A) shall not be available with respect to the provisions of 
     subsections (b), (c), and (d) of section 122 of the 
     Bipartisan Patient Protection Act and the provisions of 
     section 2702(b) to the extent that the subsections and 
     section apply to genetic information (or information about a 
     request for or the receipt of

[[Page 12416]]

     genetic services by an individual or a family member of such 
     individual).''.

     SEC. 204. APPLICATION OF GENETIC NONDISCRIMINATION 
                   REQUIREMENTS TO MEDIGAP PLANS.

       (a) Nondiscrimination.--Section 1882(s)(2) of the Social 
     Security Act (42 U.S.C. 1395ss(s)(2)) is amended by adding at 
     the end the following:
       ``(E) Each issuer of a medicare supplemental policy, and 
     each such policy offered by such an issuer, shall comply with 
     the requirements under section 122 of the Bipartisan Patient 
     Protection Act.''.
       (b) Effective date.--The amendment made by subsection (a) 
     shall apply with respect to each issuer of a medicare 
     supplemental policy and each such policy for policy years 
     beginning after October 1, 2002.
       (c) Transition Provisions.--
       (1) In general.--If the Secretary of Health and Human 
     Services identifies a State as requiring a change to its 
     statutes or regulations to conform its regulatory program to 
     the amendment made by subsection (a), the State regulatory 
     program shall not be considered to be out of compliance with 
     the requirements of section 1882 of the Social Security Act 
     (42 U.S.C. 1395ss) due solely to failure to make such change 
     until the date specified in paragraph (4).
       (2) NAIC standards.--If, not later than June 30, 2002, the 
     National Association of Insurance Commissioners (in this 
     subsection referred to as the ``NAIC'') modifies its NAIC 
     Model Regulation relating to section 1882 of the Social 
     Security Act (referred to in such section as the 1991 NAIC 
     Model Regulation, as subsequently modified) to conform to the 
     amendment made by subsection (a), such revised regulation 
     incorporating the modifications shall be considered to be the 
     applicable NAIC model regulation (including the revised NAIC 
     model regulation and the 1991 NAIC Model Regulation) for the 
     purposes of such section.
       (3) Secretary standards.--If the NAIC does not make the 
     modifications described in paragraph (2) within the period 
     specified in such paragraph, the Secretary of Health and 
     Human Services shall, not later than October 1, 2002, make 
     the modifications described in such paragraph and such 
     revised regulation incorporating the modifications shall be 
     considered to be the appropriate regulation for the purposes 
     of such section.
       (4) Date specified.--
       (A) In general.--Subject to subparagraph (B), the date 
     specified in this paragraph for a State is the earlier of--
       (i) the date the State changes its statutes or regulations 
     to conform its regulatory program to the changes made by this 
     section; or
       (ii) October 1, 2002.
       (B) Additional legislative action required.--In the case of 
     a State which the Secretary identifies as--
       (i) requiring State legislation (other than legislation 
     appropriating funds) to conform its regulatory program to the 
     amendment made by subsection (a); but
       (ii) having a legislature which is not scheduled to meet in 
     2002 in a legislative session in which such legislation may 
     be considered,

     the date specified in this paragraph is the first day of the 
     first calendar quarter beginning after the close of the first 
     legislative session of the State legislature that begins on 
     or after July 1, 2002. For purposes of the previous sentence, 
     in the case of a State that has a 2-year legislative session, 
     each year of such session shall be deemed to be a separate 
     regular session of the State legislature.

     SEC. 205. APPLICATION TO GROUP HEALTH PLANS AND GROUP HEALTH 
                   INSURANCE COVERAGE UNDER THE INTERNAL REVENUE 
                   CODE OF 1986.

       (a) In General.--Chapter 100 of the Internal Revenue Code 
     of 1986 is amended--
       (1) by redesignating subchapter C as subchapter D; and
       (2) by inserting after subchapter B the following:

              ``SUBCHAPTER C--PATIENT PROTECTION STANDARDS

     ``SEC. 9821. PATIENT PROTECTION STANDARDS.

       ``Each group health plan shall comply with patient 
     protection requirements under title I of the Bipartisan 
     Patient Protection Act, and each health insurance issuer 
     shall comply with patient protection requirements under such 
     title with respect to group health insurance coverage it 
     offers, and such requirements shall be deemed to be 
     incorporated into this section.''.
       (b) Application to Employers With Fewer Than 2 Employees.--
     Section 9831(a) of the Internal Revenue Code of 1986 is 
     amended by striking ``this chapter'' and inserting ``this 
     chapter (other than section 9821, with respect to the 
     application of section 122 of the Bipartisan Patient 
     Protection Act)''.
       After section 301, insert the following:

     SEC. 301A. APPLICATION TO EMPLOYERS WITH FEWER THAN 2 
                   EMPLOYEES.

       Section 732(a) of the Employee Retirement Income Security 
     Act of 1974 (29 U.S.C. 1191a(a)) is amended by striking 
     ``section 711'' and inserting ``sections 711 and 714(a) (with 
     respect to the application of section 122 of the Bipartisan 
     Patient Protection Act)''.

                          ____________________