Comprehensive Breast Reconstruction Act of 2021

I 117TH CONGRESS 1ST SESSION H. R. 469 To amend the Employee Retirement Income Security Act of 1974 to provide for health coverage of nipple-areolar complex tattooing in connection with reconstructive surgery following mastectomy and to amend titles XVIII and XIX of the Social Security Act to extend coverage of certain breast reconstructive services following mastectomy under the Medicare and Medicaid programs. IN THE HOUSE OF REPRESENTATIVES JANUARY 25, 2021 Mr. HASTINGS (for himself, Ms. WASSERMAN SCHULTZ, Miss GONZA´LEZ- COLO´N, Mrs. DEMINGS, Ms. SCANLON, Mr. THOMPSON of Mississippi, Ms. JACKSON LEE, Mr. SOTO, Mr. DEUTCH, Mr. JOHNSON of Georgia, Mr. BISHOP of Georgia, and Ms. LEE of California) introduced the fol- lowing bill; which was referred to the Committee on Energy and Com- merce, and in addition to the Committees on Ways and Means, and Edu- cation and Labor, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To amend the Employee Retirement Income Security Act of 1974 to provide for health coverage of nipple-areolar complex tattooing in connection with reconstructive sur- gery following mastectomy and to amend titles XVIII and XIX of the Social Security Act to extend coverage of certain breast reconstructive services following mastec- tomy under the Medicare and Medicaid programs. VerDate Sep 11 2014 16:11 Feb 13, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6652 E:\BILLS\H469.IH H469 pamtmann on DSKBC07HB2PROD with BILLS 2 •HR 469 IH Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Comprehensive Breast 4 Reconstruction Act of 2021’’. 5 SEC. 2. PROVIDING FOR HEALTH COVERAGE OF NIPPLE- 6 AREOLAR COMPLEX TATTOOING IN CONNEC- 7 TION WITH RECONSTRUCTIVE SURGERY FOL- 8 LOWING MASTECTOMY; EXTENDING COV- 9 ERAGE OF BREAST RECONSTRUCTIVE SERV- 10 ICES FOLLOWING MASTECTOMY UNDER 11 MEDICARE AND MEDICAID. 12 (a) PRIVATE HEALTH INSURANCE COVERAGE AND 13 GROUP HEALTH PLANS.— 14 (1) IN GENERAL.—Section 713(a) of the Em- 15 ployee Retirement Income Security Act of 1974 (29 16 U.S.C. 1185b(a)) is amended— 17 (A) in paragraph (2), by striking at the 18 end ‘‘and’’; 19 (B) in paragraph (3), by adding at the end 20 ‘‘and’’; 21 (C) by inserting after paragraph (3) the 22 following new paragraph: 23 ‘‘(4) tattooing of the nipple-areolar complex 24 pursuant to or as part of such reconstruction if such 25 VerDate Sep 11 2014 16:11 Feb 13, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H469.IH H469 pamtmann on DSKBC07HB2PROD with BILLS 3 •HR 469 IH tattooing is performed by a physician, physician ex- 1 tender (as defined in section 1834(x) of the Social 2 Security Act, or State-licensed tattoo artist (as de- 3 fined in such section), as prescribed by a physi- 4 cian;’’; and 5 (D) by adding at the end of the flush mat- 6 ter following paragraph (4), as inserted by sub- 7 paragraph (C), the following: ‘‘Tattooing of the 8 nipple-areolar complex described in paragraph 9 (4) shall be deemed to be medically reasonable 10 and necessary.’’. 11 (2) EFFECTIVE DATES.— 12 (A) IN GENERAL.—Subject to subpara- 13 graph (B), the amendments made by this sec- 14 tion shall apply with respect to plan years be- 15 ginning after the date of enactment of this Act. 16 (B) SPECIAL RULE FOR COLLECTIVE BAR- 17 GAINING AGREEMENTS.—In the case of a group 18 health plan maintained pursuant to 1 or more 19 collective bargaining agreements between em- 20 ployee representatives and 1 or more employers 21 ratified before the date of enactment of this 22 Act, the amendments made by this section shall 23 not apply to plan years beginning before the 24 later of— 25 VerDate Sep 11 2014 16:11 Feb 13, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H469.IH H469 pamtmann on DSKBC07HB2PROD with BILLS 4 •HR 469 IH (i) the date on which the last collec- 1 tive bargaining agreements relating to the 2 plan terminates (determined without re- 3 gard to any extension thereof agreed to 4 after the date of enactment of this Act), or 5 (ii) January 1 of the first year begin- 6 ning at least one year after the date of the 7 enactment of this Act. 8 For purposes of clause (i), any plan amendment 9 made pursuant to a collective bargaining agree- 10 ment relating to the plan which amends the 11 plan solely to conform to any requirement 12 added by this subsection shall not be treated as 13 a termination of such collective bargaining 14 agreement. 15 (b) MEDICARE COVERAGE.— 16 (1) COVERAGE.—Section 1861(s)(2) of the So- 17 cial Security Act (42 U.S.C. 1395x(s)(2)) is amend- 18 ed— 19 (A) in subparagraph (GG), by striking at 20 the end ‘‘and’’; 21 (B) in subparagraph (HH), by inserting at 22 the end ‘‘; and’’; and 23 (C) by adding at the end the following new 24 subparagraph: 25 VerDate Sep 11 2014 16:11 Feb 13, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H469.IH H469 pamtmann on DSKBC07HB2PROD with BILLS 5 •HR 469 IH ‘‘(II) qualifying reconstructive breast sur- 1 gery services (as defined in subsection (kkk)).’’. 2 (2) DEFINITION.—Section 1861 of the Social 3 Security Act (42 U.S.C. 1395x) is amended by add- 4 ing at the end the following new subsection: 5 ‘‘(kkk) QUALIFYING RECONSTRUCTIVE BREAST SUR- 6 GERY SERVICES.—The term ‘qualifying reconstructive 7 breast surgery services’ means, in the case of an individual 8 who has a mastectomy, breast reconstruction in connec- 9 tion with such mastectomy, including— 10 ‘‘(1) all stages of reconstruction of the breast 11 on which the mastectomy has been performed; 12 ‘‘(2) surgery and reconstruction of the other 13 breast to produce a symmetrical appearance; 14 ‘‘(3) prostheses and physical complications of 15 mastectomy, including lymphedemas; and 16 ‘‘(4) tattooing of the nipple-areolar complex 17 pursuant to or as part of such reconstruction if such 18 tattooing is performed by a physician, physician ex- 19 tender, or State-licensed tattoo artist (as such terms 20 are defined in section 1834(x), as prescribed by a 21 physician; 22 in a manner determined in consultation with the attending 23 physician and the individual.’’. 24 (3) PAYMENT.— 25 VerDate Sep 11 2014 16:11 Feb 13, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H469.IH H469 pamtmann on DSKBC07HB2PROD with BILLS 6 •HR 469 IH (A) IN GENERAL.—Section 1833(a)(1) of 1 the Social Security Act (42 U.S.C. 1395l(a)(1)) 2 is amended— 3 (i) by striking ‘‘and (DD)’’ and in- 4 serting ‘‘(DD)’’; and 5 (ii) by inserting before the semicolon 6 at the end the following ‘‘ and (EE) with 7 respect to qualifying reconstructive breast 8 surgery services (as defined in section 9 1861(kkk)), the amount paid shall be 10 equal to the amount payable in accordance 11 with section 1834(x)’’. 12 (B) PAYMENT DETERMINATION.—Section 13 1834 of the Social Security Act (42 U.S.C. 14 1395m) is amended by adding at the end the 15 following new subsection: 16 ‘‘(x) QUALIFYING RECONSTRUCTIVE BREAST SUR- 17 GERY SERVICES.— 18 ‘‘(1) IN GENERAL.—With respect to qualifying 19 reconstructive breast surgery services described in 20 section 1861(kkk)(4) for which payment is deter- 21 mined under this subsection, payment shall be made 22 in an amount equal to 100 percent of the reasonable 23 and customary amount for nipple areolar tattooing, 24 determined according to the reimbursement rates for 25 VerDate Sep 11 2014 16:11 Feb 13, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H469.IH H469 pamtmann on DSKBC07HB2PROD with BILLS 7 •HR 469 IH CPT codes 11920, 11921, and 11922 (or any suc- 1 cessor to such codes). 2 ‘‘(2) REASONABLE AND NECESSARY TREAT- 3 MENT.—Qualifying reconstructive breast surgery 4 services described in section 1861(kkk)(4) shall be 5 deemed to be reasonable and necessary for purposes 6 of section 1862(a)(1)(A). 7 ‘‘(3) PHYSICIAN EXTENDER.—For purposes of 8 this subsection and section 1861(kkk)(4), the term 9 ‘physician extender’ means a health care practitioner 10 who is not a physician and who is licensed or cer- 11 tified by the State in which the practitioner if fur- 12 nishing services to furnish items or services typically 13 furnished by a physician, such as a nurse practi- 14 tioner or physician assistant. 15 ‘‘(4) STATE-LICENSED TATTOO ARTIST.—For 16 purposes of this subsection and section 17 1861(kkk)(4), the term ‘State-licensed tattoo artist’ 18 means an individual (as specified by the law of the 19 State in which the individual is licensed in per- 20 forming permanent body art and in which they are 21 so practicing such art) who maintains all public 22 health, safety, and welfare standards and regulations 23 set forth by the State, including all sterilization, 24 sanitation, and safety regulations for tattoo parlors 25 VerDate Sep 11 2014 16:11 Feb 13, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H469.IH H469 pamtmann on DSKBC07HB2PROD with BILLS 8 •HR 469 IH and salons, tattoo inks, tattoo instruments, and any 1 other related paraphernalia, as well as allowing the 2 individual to perform the procedure in the pre- 3 scribing physician’s place of business with the con- 4 sent of the physician and the patient, abiding by all 5 such standards and regulations.’’. 6 (4) INCLUDING CERTAIN TATTOO ARTISTS AS 7 MEDICARE PROVIDERS FOR PURPOSES OF 8 TATTOOING OF THE NIPPLE–AREOLAR COMPLEX 9 AFTER MASTECTOMY.—Section 1866(j)(1) of the So- 10 cial Security Act (42 U.S.C. 1395cc(j)(1)) is amend- 11 ed by adding at the end the following new subpara- 12 graph: 13 ‘‘(D) INCLUDING CERTAIN TATTOO ART- 14 ISTS FOR PURPOSES OF TATTOOING OF THE 15 NIPPLE–AREOLAR COMPLEX AFTER MASTEC- 16 TOMY.—For purposes of this section, the term 17 ‘supplier’ shall include a State-licensed tattoo 18 artist (as defined in section 1834(x)), but only 19 with respect to the tattooing of the nipple- 20 areolar complex pursuant to or as part of re- 21 constructive surgery following a medically nec- 22 essary mastectomy and if such tattooing is pre- 23 scribed by a physician.’’. 24 VerDate Sep 11 2014 16:11 Feb 13, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H469.IH H469 pamtmann on DSKBC07HB2PROD with BILLS 9 •HR 469 IH (5) EFFECTIVE DATE.—The amendments made 1 by this subsection shall apply with respect to items 2 and services furnished on or after January 1 of the 3 first year beginning after the date of the enactment 4 of this Act. 5 (c) MEDICAID COVERAGE.— 6 (1) IN GENERAL.—Section 1905(a) of the So- 7 cial Security Act (42 U.S.C. 1396d(a)) is amend- 8 ed— 9 (A) by redesignating paragraph (30) as 10 paragraph (31); 11 (B) in paragraph (29), by striking at the 12 end ‘‘and’’; 13 (C) by inserting after paragraph (29) the 14 following new paragraph: 15 ‘‘(30) qualifying reconstructive breast surgery 16 services (as defined in section 1861(kkk)); and’’; and 17 (D) by adding at the end of the flush mat- 18 ter following paragraph (31), as redesignated 19 by subparagraph (A), the following new sen- 20 tence: ‘‘For purposes of paragraph (30), quali- 21 fying reconstructive breast surgery services de- 22 scribed in section 1861(kkk)(4) shall be deemed 23 to be medically reasonable and necessary.’’. 24 (2) EFFECTIVE DATE.— 25 VerDate Sep 11 2014 16:11 Feb 13, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H469.IH H469 pamtmann on DSKBC07HB2PROD with BILLS 10 •HR 469 IH (A) IN GENERAL.—Subject to subpara- 1 graph (B), the amendments made by this sec- 2 tion shall take effect with respect to medical as- 3 sistance provided on or after January 1 of the 4 first year beginning after the date of the enact- 5 ment of this Act. 6 (B) EXCEPTION FOR STATE LEGISLA- 7 TION.—In the case of a State plan under title 8 XIX of the Social Security Act (42 U.S.C. 1396 9 et seq.) that the Secretary of Health and 10 Human Services determines requires State leg- 11 islation in order for the respective plan to meet 12 any requirement imposed by the amendments 13 made by this section, the respective plan shall 14 not be regarded as failing to comply with the 15 requirements of such title solely on the basis of 16 its failure to meet such an additional require- 17 ment before the first day of the first calendar 18 quarter beginning after the close of the first 19 regular session of the State legislature that be- 20 gins after the date of the enactment of this Act. 21 For purposes of the previous sentence, in the 22 case of a State that has a 2-year legislative ses- 23 sion, each year of the session shall be consid- 24 VerDate Sep 11 2014 16:11 Feb 13, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H469.IH H469 pamtmann on DSKBC07HB2PROD with BILLS 11 •HR 469 IH ered to be a separate regular session of the 1 State legislature. 2 Æ VerDate Sep 11 2014 16:11 Feb 13, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6301 E:\BILLS\H469.IH H469 pamtmann on DSKBC07HB2PROD with BILLS