Protect Act
This bill adds, among other provisions, requirements to the Health Insurance Portability and Accountability Act of 1996 for private health insurance plans with respect to preexisting conditions, guaranteed enrollment, and discrimination based on health-related factors.
Specifically, the bill prohibits private health insurance plans from (1) limiting or excluding benefits covering preexisting conditions; (2) denying enrollment to employers or individual applicants, subject to specified limits; (3) establishing rules for eligibility based on an individual's health status; or (4) requiring an individual to a pay higher premium than similarly situated individuals enrolled in the plan based the individual's health status.
Additionally, the bill prohibits plans from collecting genetic information in connection with issuing health insurance and provides requirements for workplace wellness programs connected to health insurance.
[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 1125 Introduced in Senate (IS)]
<DOC>
116th CONGRESS
1st Session
S. 1125
To amend the Health Insurance Portability and Accountability Act.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
April 10, 2019
Mr. Tillis (for himself, Mr. Alexander, Mr. Grassley, Mr. Cassidy, Mr.
Portman, Mr. Perdue, Ms. Ernst, Mr. Cornyn, Mr. Cramer, Mr. Isakson,
Mr. Wicker, Mrs. Capito, Mr. Kennedy, Mr. Barrasso, Mr. Scott of
Florida, Mr. Burr, Mr. Young, Mr. Cotton, and Ms. McSally) introduced
the following bill; which was read twice and referred to the Committee
on Health, Education, Labor, and Pensions
_______________________________________________________________________
A BILL
To amend the Health Insurance Portability and Accountability Act.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Protect Act''.
SEC. 2. FINDINGS.
Congress finds as follows:
(1) In President Obama's last year in office, Obamacare's
high costs exposed working Americans to potential health
insurance coverage loss, the most extreme form of lacking pre-
existing conditions protection. That year, there was a 20
percent decrease in enrollment in plans offered on the Exchange
among working Americans who earned too much to receive a
premium tax credit subsidy, but not enough to cover the over
105 percent increases in premiums under Obamacare.
(2) In 2015, nearly 80 percent of the households who paid
the individual mandate tax earned less than $50,000 per year.
(3) Recognizing this unfair burden, in December 2017,
Congress acted to restore freedom and liberty to Americans by
eliminating the penalty for noncompliance with such individual
mandate.
(4) Obamacare is not the only way to protect Americans with
pre-existing conditions.
(5) Obamacare's one-size-fits-all approach undermines
States' ability to care for their populations and left many
Americans unable to afford any health insurance in the
individual market.
(6) Congress will protect individuals with preexisting
conditions if the Supreme Court ultimately determines in Texas
v. Azar that Obamacare is unconstitutional.
SEC. 3. GUARANTEED AVAILABILITY OF COVERAGE; PROHIBITING
DISCRIMINATION.
(a) In General.--Subtitle C of title I of the Health Insurance
Portability and Accountability Act of 1996 (Public Law 104-191) is
amended by adding at the end the following:
``SEC. 196. PROHIBITION OF PRE-EXISTING CONDITION EXCLUSIONS.
``(a) In General.--A group health plan and a health insurance
issuer offering group or individual health insurance coverage may not
impose any pre-existing condition exclusion with respect to such plan
or coverage.
``(b) Definitions.--For purposes of this section:
``(1) Pre-existing condition exclusion.--
``(A) In general.--The term `pre-existing condition
exclusion' means, with respect to coverage, a
limitation or exclusion of benefits relating to a
condition based on the fact that the condition was
present before the enrollment date for such coverage,
whether or not any medical advice, diagnosis, care, or
treatment was recommended or received before such date.
``(B) Treatment of genetic information.--Genetic
information shall not be treated as a condition
described in subparagraph (A) in the absence of a
diagnosis of the condition related to such information.
``(2) Enrollment date.--The term `enrollment date' means,
with respect to an individual covered under a group health plan
or health insurance coverage, the date of enrollment of the
individual in the plan or coverage or, if earlier, the first
day of the waiting period for such enrollment.
``(3) Waiting period.--The term `waiting period' means,
with respect to a group health plan and an individual who is a
potential participant or beneficiary in the plan, the period
that must pass with respect to the individual before the
individual is eligible to be covered for benefits under the
terms of the plan.
``SEC. 197. GUARANTEED AVAILABILITY OF COVERAGE.
``(a) Guaranteed Issuance of Coverage in the Individual and Group
Market.--Subject to subsections (b) through (d), each health insurance
issuer that offers health insurance coverage in the individual or group
market in a State must accept every employer and individual in the
State that applies for such coverage.
``(b) Enrollment.--
``(1) Restriction.--A health insurance issuer described in
subsection (a) may restrict enrollment in coverage described in
such subsection to open or special enrollment periods.
``(2) Establishment.--A health insurance issuer described
in subsection (a) shall, in accordance with the regulations
promulgated under paragraph (3), establish special enrollment
periods for qualifying events (under section 603 of the
Employee Retirement Income Security Act of 1974).
``(3) Regulations.--The Secretary shall promulgate
regulations with respect to enrollment periods under paragraphs
(1) and (2).
``(c) Special Rules for Network Plans.--
``(1) In general.--In the case of a health insurance issuer
that offers health insurance coverage in the group and
individual market through a network plan, the issuer may--
``(A) limit the employers that may apply for such
coverage to those with eligible individuals who live,
work, or reside in the service area for such network
plan; and
``(B) within the service area of such plan, deny
such coverage to such employers and individuals if the
issuer has demonstrated, if required, to the applicable
State authority that--
``(i) it will not have the capacity to
deliver services adequately to enrollees of any
additional groups or any additional individuals
because of its obligations to existing group
contract holders and enrollees; and
``(ii) it is applying this paragraph
uniformly to all employers and individuals
without regard to the claims experience of
those individuals, employers and their
employees (and their dependents), or any health
status-related factor relating to such
individuals, employees, and dependents.
``(2) 180-day suspension upon denial of coverage.--An
issuer, upon denying health insurance coverage in any service
area in accordance with paragraph (1)(B), may not offer
coverage in the group or individual market within such service
area for a period of 180 days after the date such coverage is
denied.
``(d) Application of Financial Capacity Limits.--
``(1) In general.--A health insurance issuer may deny
health insurance coverage in the group or individual market if
the issuer has demonstrated, if required, to the applicable
State authority that--
``(A) it does not have the financial reserves
necessary to underwrite additional coverage; and
``(B) it is applying this paragraph uniformly to
all employers and individuals in the group or
individual market in the State consistent with
applicable State law and without regard to the claims
experience of those individuals, employers and their
employees (and their dependents) or any health status-
related factor relating to such individuals, employees,
and dependents.
``(2) 180-day suspension upon denial of coverage.--A health
insurance issuer upon denying health insurance coverage in
connection with group health plans in accordance with paragraph
(1) in a State may not offer coverage in connection with group
health plans in the group or individual market in the State for
a period of 180 days after the date such coverage is denied or
until the issuer has demonstrated to the applicable State
authority, if required under applicable State law, that the
issuer has sufficient financial reserves to underwrite
additional coverage, whichever is later. An applicable State
authority may provide for the application of this subsection on
a service-area-specific basis.
``(e) Definitions.--In this section and in sections 196 and 198:
``(1) The term `Secretary' means the Secretary of Health
and Human Services.
``(2) The terms `genetic information', `genetic test',
`group health plan', `group market', `health insurance
coverage', `health insurance issuer', `group health insurance
coverage', `individual health insurance coverage', `individual
market', and `underwriting purpose' have the meanings given
such terms in section 2791 of the Public Health Service Act.''.
``SEC. 198. PROHIBITING DISCRIMINATION AGAINST INDIVIDUAL PARTICIPANTS
AND BENEFICIARIES BASED ON HEALTH STATUS.
``(a) In General.--A group health plan and a health insurance
issuer offering group or individual health insurance coverage may not
establish rules for eligibility (including continued eligibility) of
any individual to enroll under the terms of the plan or coverage based
on any of the following health status-related factors in relation to
the individual or a dependent of the individual:
``(1) Health status.
``(2) Medical condition (including both physical and mental
illnesses).
``(3) Claims experience.
``(4) Receipt of health care.
``(5) Medical history.
``(6) Genetic information.
``(7) Evidence of insurability (including conditions
arising out of acts of domestic violence).
``(8) Disability.
``(9) Any other health status-related factor determined
appropriate by the Secretary.
``(b) In Premium Contributions.--
``(1) In general.--A group health plan, and a health
insurance issuer offering group or individual health insurance
coverage, may not require any individual (as a condition of
enrollment or continued enrollment under the plan) to pay a
premium or contribution which is greater than such premium or
contribution for a similarly situated individual enrolled in
the plan on the basis of any health status-related factor in
relation to the individual or to an individual enrolled under
the plan as a dependent of the individual.
``(2) Construction.--Nothing in paragraph (1) shall be
construed--
``(A) to restrict the amount that an employer or
individual may be charged for coverage under a group
health plan except as provided in paragraph (3) or
individual health coverage, as the case may be; or
``(B) to prevent a group health plan, and a health
insurance issuer offering group health insurance
coverage, from establishing premium discounts or
rebates or modifying otherwise applicable copayments or
deductibles in return for adherence to programs of
health promotion and disease prevention.
``(3) No group-based discrimination on basis of genetic
information.--
``(A) In general.--For purposes of this section, a
group health plan, and health insurance issuer offering
group health insurance coverage in connection with a
group health plan, may not adjust premium or
contribution amounts for the group covered under such
plan on the basis of genetic information.
``(B) Rule of construction.--Nothing in
subparagraph (A) or in paragraphs (1) and (2) of
subsection (d) shall be construed to limit the ability
of a health insurance issuer offering group or
individual health insurance coverage to increase the
premium for an employer based on the manifestation of a
disease or disorder of an individual who is enrolled in
the plan. In such case, the manifestation of a disease
or disorder in one individual cannot also be used as
genetic information about other group members and to
further increase the premium for the employer.
``(c) Genetic Testing.--
``(1) Limitation on requesting or requiring genetic
testing.--A group health plan, and a health insurance issuer
offering health insurance coverage in connection with a group
health plan, shall not request or require an individual or a
family member of such individual to undergo a genetic test.
``(2) Rule of construction.--Paragraph (1) shall not be
construed to limit the authority of a health care professional
who is providing health care services to an individual to
request that such individual undergo a genetic test.
``(3) Rule of construction regarding payment.--
``(A) In general.--Nothing in paragraph (1) shall
be construed to preclude a group health plan, or a
health insurance issuer offering health insurance
coverage in connection with a group health plan, from
obtaining and using the results of a genetic test in
making a determination regarding payment (as such term
is defined for the purposes of applying the regulations
promulgated by the Secretary under part C of title XI
of the Social Security Act and section 264 of this Act,
as may be revised from time to time) consistent with
subsection (a).
``(B) Limitation.--For purposes of subparagraph
(A), a group health plan, or a health insurance issuer
offering health insurance coverage in connection with a
group health plan, may request only the minimum amount
of information necessary to accomplish the intended
purpose.
``(4) Research exception.--Notwithstanding paragraph (1), a
group health plan, or a health insurance issuer offering health
insurance coverage in connection with a group health plan, may
request, but not require, that a participant or beneficiary
undergo a genetic test if each of the following conditions is
met:
``(A) The request is made pursuant to research that
complies with part 46 of title 45, Code of Federal
Regulations, or equivalent Federal regulations, and any
applicable State or local law or regulations for the
protection of human subjects in research.
``(B) The plan or issuer clearly indicates to each
participant or beneficiary, or in the case of a minor
child, to the legal guardian of such beneficiary, to
whom the request is made that--
``(i) compliance with the request is
voluntary; and
``(ii) noncompliance will have no effect on
enrollment status or premium or contribution
amounts.
``(C) No genetic information collected or acquired
under this paragraph shall be used for underwriting
purposes.
``(D) The plan or issuer notifies the Secretary in
writing that the plan or issuer is conducting
activities pursuant to the exception provided for under
this paragraph, including a description of the
activities conducted.
``(E) The plan or issuer complies with such other
conditions as the Secretary may by regulation require
for activities conducted under this paragraph.
``(d) Prohibition on Collection of Genetic Information.--
``(1) In general.--A group health plan, and a health
insurance issuer offering health insurance coverage in
connection with a group health plan, shall not request,
require, or purchase genetic information for underwriting
purposes.
``(2) Prohibition on collection of genetic information
prior to enrollment.--A group health plan, and a health
insurance issuer offering health insurance coverage in
connection with a group health plan, shall not request,
require, or purchase genetic information with respect to any
individual prior to such individual's enrollment under the plan
or coverage in connection with such enrollment.
``(3) Incidental collection.--If a group health plan, or a
health insurance issuer offering health insurance coverage in
connection with a group health plan, obtains genetic
information incidental to the requesting, requiring, or
purchasing of other information concerning any individual, such
request, requirement, or purchase shall not be considered a
violation of paragraph (2) if such request, requirement, or
purchase is not in violation of paragraph (1).
``(e) Genetic Information of a Fetus or Embryo.--Any reference in
this part to genetic information concerning an individual or family
member of an individual shall--
``(1) with respect to such an individual or family member
of an individual who is a pregnant woman, include genetic
information of any fetus carried by such pregnant woman; and
``(2) with respect to an individual or family member
utilizing an assisted reproductive technology, include genetic
information of any embryo legally held by the individual or
family member.
``(f) Programs of Health Promotion or Disease Prevention.--
``(1) General provisions.--
``(A) General rule.--For purposes of subsection
(b)(2)(B), a program of health promotion or disease
prevention (referred to in this subsection as a
`wellness program') shall be a program offered by an
employer that is designed to promote health or prevent
disease that meets the applicable requirements of this
subsection.
``(B) No conditions based on health status
factor.--If none of the conditions for obtaining a
premium discount or rebate or other reward for
participation in a wellness program is based on an
individual satisfying a standard that is related to a
health status factor, such wellness program shall not
violate this section if participation in the program is
made available to all similarly situated individuals
and the requirements of paragraph (2) are complied
with.
``(C) Conditions based on health status factor.--If
any of the conditions for obtaining a premium discount
or rebate or other reward for participation in a
wellness program is based on an individual satisfying a
standard that is related to a health status factor,
such wellness program shall not violate this section if
the requirements of paragraph (3) are complied with.
``(2) Wellness programs not subject to requirements.--If
none of the conditions for obtaining a premium discount or
rebate or other reward under a wellness program as described in
paragraph (1)(B) are based on an individual satisfying a
standard that is related to a health status factor (or if such
a wellness program does not provide such a reward), the
wellness program shall not violate this section if
participation in the program is made available to all similarly
situated individuals. The following programs shall not have to
comply with the requirements of paragraph (3) if participation
in the program is made available to all similarly situated
individuals:
``(A) A program that reimburses all or part of the
cost for memberships in a fitness center.
``(B) A diagnostic testing program that provides a
reward for participation and does not base any part of
the reward on outcomes.
``(C) A program that encourages preventive care
related to a health condition through the waiver of the
copayment or deductible requirement under group health
plan for the costs of certain items or services related
to a health condition (such as prenatal care or well-
baby visits).
``(D) A program that reimburses individuals for the
costs of smoking cessation programs without regard to
whether the individual quits smoking.
``(E) A program that provides a reward to
individuals for attending a periodic health education
seminar.
``(3) Wellness programs subject to requirements.--If any of
the conditions for obtaining a premium discount, rebate, or
reward under a wellness program as described in paragraph
(1)(C) is based on an individual satisfying a standard that is
related to a health status factor, the wellness program shall
not violate this section if the following requirements are
complied with:
``(A) The reward for the wellness program, together
with the reward for other wellness programs with
respect to the plan that requires satisfaction of a
standard related to a health status factor, shall not
exceed 30 percent of the cost of employee-only coverage
under the plan. If, in addition to employees or
individuals, any class of dependents (such as spouses
or spouses and dependent children) may participate
fully in the wellness program, such reward shall not
exceed 30 percent of the cost of the coverage in which
an employee or individual and any dependents are
enrolled. For purposes of this paragraph, the cost of
coverage shall be determined based on the total amount
of employer and employee contributions for the benefit
package under which the employee is (or the employee
and any dependents are) receiving coverage. A reward
may be in the form of a discount or rebate of a premium
or contribution, a waiver of all or part of a cost-
sharing mechanism (such as deductibles, copayments, or
coinsurance), the absence of a surcharge, or the value
of a benefit that would otherwise not be provided under
the plan. The Secretaries of Labor, Health and Human
Services, and the Treasury may increase the reward
available under this subparagraph to up to 50 percent
of the cost of coverage if the Secretaries determine
that such an increase is appropriate.
``(B) The wellness program shall be reasonably
designed to promote health or prevent disease. A
program complies with the preceding sentence if the
program has a reasonable chance of improving the health
of, or preventing disease in, participating individuals
and it is not overly burdensome, is not a subterfuge
for discriminating based on a health status factor, and
is not highly suspect in the method chosen to promote
health or prevent disease.
``(C) The plan shall give individuals eligible for
the program the opportunity to qualify for the reward
under the program at least once each year.
``(D) The full reward under the wellness program
shall be made available to all similarly situated
individuals. For such purpose, among other things:
``(i) The reward is not available to all
similarly situated individuals for a period
unless the wellness program allows--
``(I) for a reasonable alternative
standard (or waiver of the otherwise
applicable standard) for obtaining the
reward for any individual for whom, for
that period, it is unreasonably
difficult due to a medical condition to
satisfy the otherwise applicable
standard; and
``(II) for a reasonable alternative
standard (or waiver of the otherwise
applicable standard) for obtaining the
reward for any individual for whom, for
that period, it is medically
inadvisable to attempt to satisfy the
otherwise applicable standard.
``(ii) If reasonable under the
circumstances, the plan or issuer may seek
verification, such as a statement from an
individual's physician, that a health status
factor makes it unreasonably difficult or
medically inadvisable for the individual to
satisfy or attempt to satisfy the otherwise
applicable standard.
``(E) The plan or issuer involved shall disclose in
all plan materials describing the terms of the wellness
program the availability of a reasonable alternative
standard (or the possibility of waiver of the otherwise
applicable standard) required under subparagraph (D).
If plan materials disclose that such a program is
available, without describing its terms, the disclosure
under this subparagraph shall not be required.''.
(b) Conforming Amendment.--The table of contents under section 1(b)
of the Health Insurance Portability and Accountability Act of 1996
(Public Law 104-191) is amended by inserting after the item relating to
section 195 the following:
``Sec. 196. Prohibition of pre-existing condition exclusions.
``Sec. 197. Guaranteed availability of coverage.
``Sec. 198. Prohibiting discrimination against individual participants
and beneficiaries based on health
status.''.
(c) Enforcement.--
(1) PHSA.--Section 2723 of the Public Health Service Act
(42 U.S.C. 300gg-22) is amended--
(A) in subsection (a)--
(i) in paragraph (1), by inserting ``and
sections 196, 197, and 198 of the Health
Insurance Portability and Accountability Act of
1996'' after ``this part''; and
(ii) in paragraph (2), by inserting ``or
section 196, 197, or 198 of the Health
Insurance Portability and Accountability Act of
1996'' after ``this part''; and
(B) in subsection (b), by inserting ``or section
196, 197, or 198 of the Health Insurance Portability
and Accountability Act of 1996'' after ``this part''
each place such term appears.
(2) ERISA.--Section 715 of the Employee Retirement Income
Security Act of 1974 (29 U.S.C. 1185d) is amended by adding at
the end the following:
``(c) Additional Provisions.--Section 197 of the Health Insurance
Portability and Accountability Act of 1996 shall apply to health
insurance issuers providing health insurance coverage in connection
with group health plans, and sections 196 and 198 of such Act shall
apply to group health plans and health insurance issuers providing
health insurance coverage in connection with group health plans, as if
included in this subpart, and to the extent that any provision of this
part conflicts with a provision of such section 197 with respect to
health insurance issuers providing health insurance coverage in
connection with group health plans or of such section 196 or 198 with
respect to group health plans or health insurance issuers providing
health insurance coverage in connection with group health plans, the
provisions of such sections 196, 197, and 198, as applicable, shall
apply.''.
(3) IRC.--Section 9815 of the Internal Revenue Code of 1986
is amended by adding at the end the following:
``(c) Additional Provisions.--Section 197 of the Health Insurance
Portability and Accountability Act of 1996 shall apply to health
insurance issuers providing health insurance coverage in connection
with group health plans, and section 196 and 198 of such Act shall
apply to group health plans and health insurance issuers providing
health insurance coverage in connection with group health plans, as if
included in this subchapter, and to the extent that any provision of
this chapter conflicts with a provision of such section 197 with
respect to health insurance issuers providing health insurance coverage
in connection with group health plans or of such section 196 or 198
with respect to group health plans or health insurance issuers
providing health insurance coverage in connection with group health
plans, the provisions of such sections 196, 197, and 198, as
applicable, shall apply.''.
<all>
Introduced in Senate
Read twice and referred to the Committee on Health, Education, Labor, and Pensions.
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