Ensuring Lasting Smiles Act

II 117TH CONGRESS 1ST SESSION S. 754 To provide health insurance benefits for outpatient and inpatient items and services related to the diagnosis and treatment of a congenital anomaly or birth defect. IN THE SENATE OF THE UNITED STATES MARCH 16, 2021 Ms. BALDWIN (for herself, Ms. ERNST, Mr. BROWN, Ms. MURKOWSKI, Ms. KLOBUCHAR, Mr. MARSHALL, Mrs. SHAHEEN, Mr. WICKER, Mr. WHITE- HOUSE, Mr. TILLIS, Ms. STABENOW, Mr. CRAMER, Mr. VAN HOLLEN, Mr. BOOZMAN, Mr. PETERS, Ms. COLLINS, Mr. MARKEY, Mrs. CAPITO, Mr. BOOKER, Mr. GRAHAM, Ms. SMITH, Mr. GRASSLEY, Ms. SINEMA, Mr. MORAN, Mr. MURPHY, Mr. DAINES, Mr. BLUMENTHAL, Mr. BRAUN, and Mr. REED) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions A BILL To provide health insurance benefits for outpatient and inpa- tient items and services related to the diagnosis and treatment of a congenital anomaly or birth defect. 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 ‘‘Ensuring Lasting 4 Smiles Act’’. 5 VerDate Sep 11 2014 18:14 Apr 09, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S754.IS S754 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 754 IS SEC. 2. COVERAGE OF CONGENITAL ANOMALY OR BIRTH 1 DEFECT. 2 (a) PUBLIC HEALTH SERVICE ACT AMENDMENTS.— 3 Part D of title XXVII of the Public Health Service Act 4 (42 U.S.C. 300gg–111 et seq.) is amended by adding at 5 the end the following new section: 6 ‘‘SEC. 2799A–11. STANDARDS RELATING TO BENEFITS FOR 7 CONGENITAL ANOMALY OR BIRTH DEFECT. 8 ‘‘(a) REQUIREMENTS FOR CARE AND RECONSTRUC- 9 TIVE TREATMENT.— 10 ‘‘(1) IN GENERAL.—A group health plan, and a 11 health insurance issuer offering group or individual 12 health insurance coverage, shall provide coverage for 13 outpatient and inpatient items and services related 14 to the diagnosis and treatment of a congenital 15 anomaly or birth defect. 16 ‘‘(2) REQUIREMENTS.— 17 ‘‘(A) IN GENERAL.—Coverage provided 18 under paragraph (1) shall include any medically 19 necessary item or service to functionally im- 20 prove, repair, or restore any body part to 21 achieve normal body functioning or appearance, 22 as determined by the treating physician (as de- 23 fined in section 1861(r) of the Social Security 24 Act), due to congenital anomaly or birth defect. 25 VerDate Sep 11 2014 18:14 Apr 09, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S754.IS S754 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 754 IS ‘‘(B) FINANCIAL REQUIREMENTS AND 1 TREATMENT REQUIREMENTS.—Any coverage 2 provided under paragraph (1) under a group 3 health plan or individual or group health insur- 4 ance coverage offered by a health insurance 5 issuer may be subject to coverage limits (such 6 as medical necessity, pre-authorization, or pre- 7 certification) and cost-sharing requirements 8 (such as coinsurance, copayments, and 9 deductibles), as required by the plan or issuer, 10 that are no more restrictive than the predomi- 11 nant coverage limits and cost-sharing require- 12 ments, respectively, applied to substantially all 13 medical and surgical benefits covered by the 14 plan (or coverage). 15 ‘‘(3) TREATMENT DEFINED.—In this section: 16 ‘‘(A) IN GENERAL.—Except as provided in 17 subparagraph (B), the term ‘treatment’ in- 18 cludes, with respect to a group health plan or 19 group or individual health insurance coverage 20 offered by a health insurance issuer, inpatient 21 and outpatient items and services performed to 22 improve, repair, or restore bodily function (or 23 performed to approximate a normal appear- 24 ance), due to a congenital anomaly or birth de- 25 VerDate Sep 11 2014 18:14 Apr 09, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S754.IS S754 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 754 IS fect, and includes treatment to any and all 1 missing or abnormal body parts (including 2 teeth, the oral cavity, and their associated 3 structures) that would otherwise be provided 4 under the plan or coverage for any other injury 5 or sickness, including— 6 ‘‘(i) any items or services, including 7 inpatient and outpatient care, reconstruc- 8 tive services and procedures, and complica- 9 tions thereof; 10 ‘‘(ii) adjunctive dental, orthodontic, or 11 prosthodontic support from birth until the 12 medical or surgical treatment of the defect 13 or anomaly has been completed, including 14 ongoing or subsequent treatment required 15 to maintain function or approximate a nor- 16 mal appearance; 17 ‘‘(iii) procedures that materially im- 18 prove, repair, or restore bodily function; 19 and 20 ‘‘(iv) procedures for secondary condi- 21 tions and follow-up treatment associated 22 with the underlying congenital anomaly or 23 birth defect. 24 VerDate Sep 11 2014 18:14 Apr 09, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S754.IS S754 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 754 IS ‘‘(B) EXCEPTION.—The term ‘treatment’ 1 shall not include cosmetic surgery performed to 2 reshape normal structures of the body to im- 3 prove appearance or self-esteem. 4 ‘‘(b) NOTICE.—A group health plan under this part 5 shall comply with the notice requirement under section 6 714(c) of the Employee Retirement Income Security Act 7 of 1974 with respect to the requirements of this section 8 as if such section applied to such plan.’’. 9 (b) ERISA AMENDMENTS.— 10 (1) IN GENERAL.—Subpart B of part 7 of sub- 11 title B of title I of the Employee Retirement Income 12 Security Act of 1974 is amended by adding at the 13 end the following: 14 ‘‘SEC. 726. STANDARDS RELATING TO BENEFITS FOR CON- 15 GENITAL ANOMALY OR BIRTH DEFECT. 16 ‘‘(a) REQUIREMENTS FOR CARE AND RECONSTRUC- 17 TIVE TREATMENT.— 18 ‘‘(1) IN GENERAL.—A group health plan, and a 19 health insurance issuer offering group health insur- 20 ance coverage, shall provide coverage for outpatient 21 and inpatient items and services related to the diag- 22 nosis and treatment of a congenital anomaly or birth 23 defect. 24 ‘‘(2) REQUIREMENTS.— 25 VerDate Sep 11 2014 18:14 Apr 09, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S754.IS S754 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 754 IS ‘‘(A) IN GENERAL.—Coverage provided 1 under paragraph (1) shall include any medically 2 necessary item or service to functionally im- 3 prove, repair, or restore any body part to 4 achieve normal body functioning or appearance, 5 as determined by the treating physician (as de- 6 fined in section 1861(r) of the Social Security 7 Act), due to congenital anomaly or birth defect. 8 ‘‘(B) FINANCIAL REQUIREMENTS AND 9 TREATMENT REQUIREMENTS.—Any coverage 10 provided under paragraph (1) under a group 11 health plan or group health insurance coverage 12 offered by a health insurance issuer may be 13 subject to coverage limits (such as medical ne- 14 cessity, pre-authorization, or pre-certification) 15 and cost-sharing requirements (such as coinsur- 16 ance, copayments, and deductibles), as required 17 by the plan or issuer, that are no more restric- 18 tive than the predominant coverage limits and 19 cost-sharing requirements, respectively, applied 20 to substantially all medical and surgical benefits 21 covered by the plan (or coverage). 22 ‘‘(3) TREATMENT DEFINED.—In this section: 23 ‘‘(A) IN GENERAL.—Except as provided in 24 subparagraph (B), the term ‘treatment’ in- 25 VerDate Sep 11 2014 18:14 Apr 09, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S754.IS S754 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 754 IS cludes, with respect to a group health plan or 1 group health insurance coverage offered by a 2 health insurance issuer, inpatient and out- 3 patient items and services performed to im- 4 prove, repair, or restore bodily function (or per- 5 formed to approximate a normal appearance), 6 due to a congenital anomaly or birth defect, and 7 includes treatment to any and all missing or ab- 8 normal body parts (including teeth, the oral 9 cavity, and their associated structures) that 10 would otherwise be provided under the plan or 11 coverage for any other injury or sickness, in- 12 cluding— 13 ‘‘(i) any items or services, including 14 inpatient and outpatient care, reconstruc- 15 tive services and procedures, and complica- 16 tions thereof; 17 ‘‘(ii) adjunctive dental, orthodontic, or 18 prosthodontic support from birth until the 19 medical or surgical treatment of the defect 20 or anomaly has been completed, including 21 ongoing or subsequent treatment required 22 to maintain function or approximate a nor- 23 mal appearance; 24 VerDate Sep 11 2014 18:14 Apr 09, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S754.IS S754 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 754 IS ‘‘(iii) procedures that materially im- 1 prove, repair, or restore bodily function; 2 and 3 ‘‘(iv) procedures for secondary condi- 4 tions and follow-up treatment associated 5 with the underlying congenital anomaly or 6 birth defect. 7 ‘‘(B) EXCEPTION.—The term ‘treatment’ 8 shall not include cosmetic surgery performed to 9 reshape normal structures of the body to im- 10 prove appearance or self-esteem. 11 ‘‘(b) NOTICE.—A group health plan under this part 12 shall comply with the notice requirement under section 13 714(c) with respect to the requirements of this section as 14 if such section applied to such plan.’’. 15 (2) TECHNICAL AMENDMENTS.— 16 (A) Section 732(a) of such Act (29 U.S.C. 17 1191a(a)) is amended by striking ‘‘section 711’’ 18 and inserting ‘‘sections 711 and 726’’. 19 (B) The table of contents in section 1 of 20 such Act is amended by inserting after the item 21 relating to section 725 the following new item: 22 ‘‘Sec. 726. Standards relating to benefits for congenital anomaly or birth de- fect.’’ (c) INTERNAL REVENUE CODE AMENDMENTS.— 23 VerDate Sep 11 2014 23:14 Apr 09, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S754.IS S754 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 754 IS (1) IN GENERAL.—Subchapter B of chapter 1 100 of the Internal Revenue Code of 1986 is amend- 2 ed by adding at the end the following: 3 ‘‘SEC. 9826. STANDARDS RELATING TO BENEFITS FOR CON- 4 GENITAL ANOMALY OR BIRTH DEFECT. 5 ‘‘(a) REQUIREMENTS FOR CARE AND RECONSTRUC- 6 TIVE TREATMENT.— 7 ‘‘(1) IN GENERAL.—A group health plan shall 8 provide coverage for outpatient and inpatient items 9 and services related to the diagnosis and treatment 10 of a congenital anomaly or birth defect. 11 ‘‘(2) REQUIREMENTS.— 12 ‘‘(A) IN GENERAL.—Coverage provided 13 under paragraph (1) shall include any medically 14 necessary item or service to functionally im- 15 prove, repair, or restore any body part to 16 achieve normal body functioning or appearance, 17 as determined by the treating physician (as de- 18 fined in section 1861(r) of the Social Security 19 Act), due to congenital anomaly or birth defect. 20 ‘‘(B) FINANCIAL REQUIREMENTS AND 21 TREATMENT REQUIREMENTS.—Any coverage 22 provided under paragraph (1) under a group 23 health plan may be subject to coverage limits 24 (such as medical necessity, pre-authorization, or 25 VerDate Sep 11 2014 18:14 Apr 09, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S754.IS S754 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 754 IS pre-certification) and cost-sharing requirements 1 (such as coinsurance, copayments, and 2 deductibles), as required by the plan, that are 3 no more restrictive than the predominant cov- 4 erage limits and cost-sharing requirements, re- 5 spectively, applied to substantially all medical 6 and surgical benefits covered by the plan. 7 ‘‘(3) TREATMENT DEFINED.—In this section: 8 ‘‘(A) IN GENERAL.—Except as provided in 9 subparagraph (B), the term ‘treatment’ in- 10 cludes, with respect to a group health plan, in- 11 patient and outpatient items and services per- 12 formed to improve, repair, or restore bodily 13 function (or performed to approximate a normal 14 appearance), due to a congenital anomaly or 15 birth defect, and includes treatment to any and 16 all missing or abnormal body parts (including 17 teeth, the oral cavity, and their associated 18 structures) that would otherwise be provided 19 under the plan for any other injury or sickness, 20 including— 21 ‘‘(i) any items or services, including 22 inpatient and outpatient care, reconstruc- 23 tive services and procedures, and complica- 24 tions thereof; 25 VerDate Sep 11 2014 18:14 Apr 09, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S754.IS S754 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 754 IS ‘‘(ii) adjunctive dental, orthodontic, or 1 prosthodontic support from birth until the 2 medical or surgical treatment of the defect 3 or anomaly has been completed, including 4 ongoing or subsequent treatment required 5 to maintain function or approximate a nor- 6 mal appearance; 7 ‘‘(iii) procedures that materially im- 8 prove, repair, or restore bodily function; 9 and 10 ‘‘(iv) procedures for secondary condi- 11 tions and follow-up treatment associated 12 with the underlying congenital anomaly or 13 birth defect. 14 ‘‘(B) EXCEPTION.—The term ‘treatment’ 15 shall not include cosmetic surgery performed to 16 reshape normal structures of the body to im- 17 prove appearance or self-esteem. 18 ‘‘(b) NOTICE.—A group health plan under this part 19 shall comply with the notice requirement under section 20 714(c) of the Employee Retirement Income Security Act 21 of 1974 with respect to the requirements of this section 22 as if such section applied to such plan.’’. 23 VerDate Sep 11 2014 18:14 Apr 09, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S754.IS S754 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 754 IS (2) CLERICAL AMENDMENT.—The table of sec- 1 tions for such subchapter is amended by adding at 2 the end the following new item: 3 ‘‘Sec. 9826. Standards relating to benefits for congenital anomaly or birth de- fect.’’. (d) RULE OF CONSTRUCTION.—A group health plan 4 or health insurance issuer shall provide the benefits de- 5 scribed in section 2799A–11 of the Public Health Service 6 Act (as added by subsection (a)), section 726 of the Em- 7 ployee Retirement Income Security Act of 1974 (as added 8 by subsection (b)), and section 9826 of the Internal Rev- 9 enue Code of 1986 (as added by subsection (c)) under the 10 terms of such plan or health insurance coverage offered 11 by such issuer. 12 (e) CLARIFYING AMENDMENT REGARDING APPLICA- 13 TION TO GRANDFATHERED PLANS.—Section 14 1251(a)(4)(A) of the Patient Protection and Affordable 15 Care Act (42 U.S.C. 18011(a)(4)(A)), is amended by add- 16 ing at the end the following: 17 ‘‘(v) Section 2799A–11 (r [Text truncated for display. Full text available on Congress.gov.]