Protect Act

II 117TH CONGRESS 1ST SESSION S. 322 To amend the Health Insurance Portability and Accountability Act. IN THE SENATE OF THE UNITED STATES FEBRUARY 12, 2021 Mr. TILLIS (for himself, Ms. ERNST, Mr. PORTMAN, Mr. CORNYN, Mrs. HYDE-SMITH, Mrs. CAPITO, Mr. JOHNSON, Mr. MARSHALL, Mr. BURR, and Mr. YOUNG) 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 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 ‘‘Protect Act’’. 4 SEC. 2. GUARANTEED AVAILABILITY OF COVERAGE; PRO- 5 HIBITING DISCRIMINATION. 6 (a) IN GENERAL.—Subtitle C of title I of the Health 7 Insurance Portability and Accountability Act of 1996 8 (Public Law 104–191) is amended by adding at the end 9 the following: 10 VerDate Sep 11 2014 19:11 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S322.IS S322 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 322 IS ‘‘SEC. 196. PROHIBITION OF PRE-EXISTING CONDITION EX- 1 CLUSIONS. 2 ‘‘(a) IN GENERAL.—A group health plan and a health 3 insurance issuer offering group or individual health insur- 4 ance coverage may not impose any pre-existing condition 5 exclusion with respect to such plan or coverage. 6 ‘‘(b) DEFINITIONS.—For purposes of this section: 7 ‘‘(1) PRE-EXISTING CONDITION EXCLUSION.— 8 ‘‘(A) IN GENERAL.—The term ‘pre-existing 9 condition exclusion’ means, with respect to cov- 10 erage, a limitation or exclusion of benefits relat- 11 ing to a condition based on the fact that the 12 condition was present before the enrollment 13 date for such coverage, whether or not any 14 medical advice, diagnosis, care, or treatment 15 was recommended or received before such date. 16 ‘‘(B) TREATMENT OF GENETIC INFORMA- 17 TION.—Genetic information shall not be treated 18 as a condition described in subparagraph (A) in 19 the absence of a diagnosis of the condition re- 20 lated to such information. 21 ‘‘(2) ENROLLMENT DATE.—The term ‘enroll- 22 ment date’ means, with respect to an individual cov- 23 ered under a group health plan or health insurance 24 coverage, the date of enrollment of the individual in 25 VerDate Sep 11 2014 19:11 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S322.IS S322 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 322 IS the plan or coverage or, if earlier, the first day of 1 the waiting period for such enrollment. 2 ‘‘(3) WAITING PERIOD.—The term ‘waiting pe- 3 riod’ means, with respect to a group health plan and 4 an individual who is a potential participant or bene- 5 ficiary in the plan, the period that must pass with 6 respect to the individual before the individual is eli- 7 gible to be covered for benefits under the terms of 8 the plan. 9 ‘‘SEC. 197. GUARANTEED AVAILABILITY OF COVERAGE. 10 ‘‘(a) GUARANTEED ISSUANCE OF COVERAGE IN THE 11 INDIVIDUAL AND GROUP MARKET.—Subject to sub- 12 sections (b) through (d), each health insurance issuer that 13 offers health insurance coverage in the individual or group 14 market in a State must accept every employer and indi- 15 vidual in the State that applies for such coverage. 16 ‘‘(b) ENROLLMENT.— 17 ‘‘(1) RESTRICTION.—A health insurance issuer 18 described in subsection (a) may restrict enrollment 19 in coverage described in such subsection to open or 20 special enrollment periods. 21 ‘‘(2) ESTABLISHMENT.—A health insurance 22 issuer described in subsection (a) shall, in accord- 23 ance with the regulations promulgated under para- 24 graph (3), establish special enrollment periods for 25 VerDate Sep 11 2014 19:11 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S322.IS S322 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 322 IS qualifying events (under section 603 of the Em- 1 ployee Retirement Income Security Act of 1974). 2 ‘‘(3) REGULATIONS.—The Secretary shall pro- 3 mulgate regulations with respect to enrollment peri- 4 ods under paragraphs (1) and (2). 5 ‘‘(c) SPECIAL RULES FOR NETWORK PLANS.— 6 ‘‘(1) IN GENERAL.—In the case of a health in- 7 surance issuer that offers health insurance coverage 8 in the group and individual market through a net- 9 work plan, the issuer may— 10 ‘‘(A) limit the employers that may apply 11 for such coverage to those with eligible individ- 12 uals who live, work, or reside in the service area 13 for such network plan; and 14 ‘‘(B) within the service area of such plan, 15 deny such coverage to such employers and indi- 16 viduals if the issuer has demonstrated, if re- 17 quired, to the applicable State authority that— 18 ‘‘(i) it will not have the capacity to de- 19 liver services adequately to enrollees of any 20 additional groups or any additional individ- 21 uals because of its obligations to existing 22 group contract holders and enrollees; and 23 ‘‘(ii) it is applying this paragraph uni- 24 formly to all employers and individuals 25 VerDate Sep 11 2014 19:11 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S322.IS S322 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 322 IS without regard to the claims experience of 1 those individuals, employers and their em- 2 ployees (and their dependents), or any 3 health status-related factor relating to 4 such individuals, employees, and depend- 5 ents. 6 ‘‘(2) 180-DAY SUSPENSION UPON DENIAL OF 7 COVERAGE.—An issuer, upon denying health insur- 8 ance coverage in any service area in accordance with 9 paragraph (1)(B), may not offer coverage in the 10 group or individual market within such service area 11 for a period of 180 days after the date such cov- 12 erage is denied. 13 ‘‘(d) APPLICATION OF FINANCIAL CAPACITY LIM- 14 ITS.— 15 ‘‘(1) IN GENERAL.—A health insurance issuer 16 may deny health insurance coverage in the group or 17 individual market if the issuer has demonstrated, if 18 required, to the applicable State authority that— 19 ‘‘(A) it does not have the financial reserves 20 necessary to underwrite additional coverage; 21 and 22 ‘‘(B) it is applying this paragraph uni- 23 formly to all employers and individuals in the 24 group or individual market in the State con- 25 VerDate Sep 11 2014 19:11 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S322.IS S322 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 322 IS sistent with applicable State law and without 1 regard to the claims experience of those individ- 2 uals, employers and their employees (and their 3 dependents) or any health status-related factor 4 relating to such individuals, employees, and de- 5 pendents. 6 ‘‘(2) 180-DAY SUSPENSION UPON DENIAL OF 7 COVERAGE.—A health insurance issuer upon denying 8 health insurance coverage in connection with group 9 health plans in accordance with paragraph (1) in a 10 State may not offer coverage in connection with 11 group health plans in the group or individual market 12 in the State for a period of 180 days after the date 13 such coverage is denied or until the issuer has dem- 14 onstrated to the applicable State authority, if re- 15 quired under applicable State law, that the issuer 16 has sufficient financial reserves to underwrite addi- 17 tional coverage, whichever is later. An applicable 18 State authority may provide for the application of 19 this subsection on a service-area-specific basis. 20 ‘‘(e) DEFINITIONS.—In this section and in sections 21 196 and 198: 22 ‘‘(1) The term ‘Secretary’ means the Secretary 23 of Health and Human Services. 24 VerDate Sep 11 2014 19:11 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S322.IS S322 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 322 IS ‘‘(2) The terms ‘genetic information’, ‘genetic 1 test’, ‘group health plan’, ‘group market’, ‘health in- 2 surance coverage’, ‘health insurance issuer’, ‘group 3 health insurance coverage’, ‘individual health insur- 4 ance coverage’, ‘individual market’, and ‘under- 5 writing purpose’ have the meanings given such terms 6 in section 2791 of the Public Health Service Act.’’. 7 ‘‘SEC. 198. PROHIBITING DISCRIMINATION AGAINST INDI- 8 VIDUAL PARTICIPANTS AND BENEFICIARIES 9 BASED ON HEALTH STATUS. 10 ‘‘(a) IN GENERAL.—A group health plan and a health 11 insurance issuer offering group or individual health insur- 12 ance coverage may not establish rules for eligibility (in- 13 cluding continued eligibility) of any individual to enroll 14 under the terms of the plan or coverage based on any of 15 the following health status-related factors in relation to 16 the individual or a dependent of the individual: 17 ‘‘(1) Health status. 18 ‘‘(2) Medical condition (including both physical 19 and mental illnesses). 20 ‘‘(3) Claims experience. 21 ‘‘(4) Receipt of health care. 22 ‘‘(5) Medical history. 23 ‘‘(6) Genetic information. 24 VerDate Sep 11 2014 19:11 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S322.IS S322 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 322 IS ‘‘(7) Evidence of insurability (including condi- 1 tions arising out of acts of domestic violence). 2 ‘‘(8) Disability. 3 ‘‘(9) Any other health status-related factor de- 4 termined appropriate by the Secretary. 5 ‘‘(b) IN PREMIUM CONTRIBUTIONS.— 6 ‘‘(1) IN GENERAL.—A group health plan, and a 7 health insurance issuer offering group or individual 8 health insurance coverage, may not require any indi- 9 vidual (as a condition of enrollment or continued en- 10 rollment under the plan) to pay a premium or con- 11 tribution which is greater than such premium or 12 contribution for a similarly situated individual en- 13 rolled in the plan on the basis of any health status- 14 related factor in relation to the individual or to an 15 individual enrolled under the plan as a dependent of 16 the individual. 17 ‘‘(2) CONSTRUCTION.—Nothing in paragraph 18 (1) shall be construed— 19 ‘‘(A) to restrict the amount that an em- 20 ployer or individual may be charged for cov- 21 erage under a group health plan except as pro- 22 vided in paragraph (3) or individual health cov- 23 erage, as the case may be; or 24 VerDate Sep 11 2014 19:11 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S322.IS S322 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 322 IS ‘‘(B) to prevent a group health plan, and 1 a health insurance issuer offering group health 2 insurance coverage, from establishing premium 3 discounts or rebates or modifying otherwise ap- 4 plicable copayments or deductibles in return for 5 adherence to programs of health promotion and 6 disease prevention. 7 ‘‘(3) NO GROUP-BASED DISCRIMINATION ON 8 BASIS OF GENETIC INFORMATION.— 9 ‘‘(A) IN GENERAL.—For purposes of this 10 section, a group health plan, and health insur- 11 ance issuer offering group health insurance cov- 12 erage in connection with a group health plan, 13 may not adjust premium or contribution 14 amounts for the group covered under such plan 15 on the basis of genetic information. 16 ‘‘(B) RULE OF CONSTRUCTION.—Nothing 17 in subparagraph (A) or in paragraphs (1) and 18 (2) of subsection (d) shall be construed to limit 19 the ability of a health insurance issuer offering 20 group or individual health insurance coverage to 21 increase the premium for an employer based on 22 the manifestation of a disease or disorder of an 23 individual who is enrolled in the plan. In such 24 case, the manifestation of a disease or disorder 25 VerDate Sep 11 2014 19:11 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S322.IS S322 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 322 IS in one individual cannot also be used as genetic 1 information about other group members and to 2 further increase the premium for the employer. 3 ‘‘(c) GENETIC TESTING.— 4 ‘‘(1) LIMITATION ON REQUESTING OR REQUIR- 5 ING GENETIC TESTING.—A group health plan, and a 6 health insurance issuer offering health insurance 7 coverage in connection with a group health plan, 8 shall not request or require an individual or a family 9 member of such individual to undergo a genetic test. 10 ‘‘(2) RULE OF CONSTRUCTION.—Paragraph (1) 11 shall not be construed to limit the authority of a 12 health care professional who is providing health care 13 services to an individual to request that such indi- 14 vidual undergo a genetic test. 15 ‘‘(3) RULE OF CONSTRUCTION REGARDING PAY- 16 MENT.— 17 ‘‘(A) IN GENERAL.—Nothing in paragraph 18 (1) shall be construed to preclude a group 19 health plan, or a health insurance issuer offer- 20 ing health insurance coverage in connection 21 with a group health plan, from obtaining and 22 using the results of a genetic test in making a 23 determination regarding payment (as such term 24 is defined for the purposes of applying the regu- 25 VerDate Sep 11 2014 19:11 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S322.IS S322 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 322 IS lations promulgated by the Secretary under 1 part C of title XI of the Social Security Act and 2 section 264 of this Act, as may be revised from 3 time to time) consistent with subsection (a). 4 ‘‘(B) LIMITATION.—For purposes of sub- 5 paragraph (A), a group health plan, or a health 6 insurance issuer offering health insurance cov- 7 erage in connection with a group health plan, 8 may request only the minimum amount of in- 9 formation necessary to accomplish the intended 10 purpose. 11 ‘‘(4) RESEARCH EXCEPTION.—Notwithstanding 12 paragraph (1), a group health plan, or a health in- 13 surance issuer offering health insurance coverage in 14 connection with a group health plan, may request, 15 but not require, that a participant or beneficiary un- 16 dergo a genetic test if each of the following condi- 17 tions is met: 18 ‘‘(A) The request is made pursuant to re- 19 search that complies with part 46 of title 45, 20 Code of Federal Regulations, or equivalent Fed- 21 eral regulations, and any applicable State or 22 local law or regulations for the protection of 23 human subjects in research. 24 VerDate Sep 11 2014 19:11 Feb 27, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S322.IS S322 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 322 IS ‘‘(B) The plan or issuer clearly indicates to 1 each participant or beneficiary, or in the case of 2 a minor child, to the legal guardian of such 3 beneficiary, to whom the request is made that— 4 ‘‘(i) compliance with the request is 5 voluntary; and 6 ‘‘(ii) noncompliance will have no effect 7 on enrollment status or premium or con- 8 tribution amounts. 9 ‘‘(C) No genetic information collected or 10 acquired under this paragraph shall be used for 11 underwriting purposes. 12 ‘‘(D) The plan or issuer notifies the Sec- 13 retary in [Text truncated for display. 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