Fair Care Act of 2019

I 116TH CONGRESS 1ST SESSION H. R. 1332 To address the high costs of health care services, prescription drugs, and health insurance coverage in the United States, and for other purposes. IN THE HOUSE OF REPRESENTATIVES FEBRUARY 25, 2019 Mr. WESTERMAN introduced the following bill; which was referred to the Com- mittee on Energy and Commerce, and in addition to the Committees on Ways and Means, the Judiciary, Oversight and Reform, Education and Labor, Rules, the Budget, Armed Services, and House Administration, 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 address the high costs of health care services, prescription drugs, and health insurance coverage in the United States, and for other purposes. 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; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Fair Care Act of 2019’’. 5 (b) TABLE OF CONTENTS.—The table of contents for 6 this Act is as follows: 7 VerDate Sep 11 2014 00:03 Mar 15, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H1332.IH H1332 pamtmann on DSKBFK8HB2PROD with BILLS 2 •HR 1332 IH Sec. 1. Short title; table of contents. TITLE I—PRIVATE-SECTOR HEALTH INSURANCE REFORMS Subtitle A—Commercial Health Insurance Provisions Sec. 101. Invisible high risk pool reinsurance program; tax on exchange plans. Sec. 102. Change in permissible age variation in health insurance premium rates. Sec. 103. Employer health insurance mandate repeal. Sec. 104. Employer benefits reports. Sec. 105. Waivers for State innovation. Sec. 106. State-operated Exchanges flexibility for open enrollment periods. Sec. 107. Enrollment periods. Sec. 108. Short-term limited duration insurance. Sec. 109. Promoting health plans that cover individuals in more than one State. Sec. 110. Restoring the application of antitrust laws to the business of health insurance. Sec. 111. Health plans created under PPACA or offered through Exchanges to be only health plans Federal Government may make available to President, Vice President, Members of Congress, and Fed- eral employees. Sec. 112. Cost-sharing reductions. Sec. 113. Health savings accounts. Sec. 114. Adding copper plans to Exchanges. Sec. 115. Eliminating FEHBP eligibility for annuitants. Subtitle B—Association Health Plans Sec. 121. Rules governing association health plans. Sec. 122. Clarification of treatment of single employer arrangements. Sec. 123. Enforcement provisions relating to association health plans. Sec. 124. Cooperation between Federal and State authorities. Sec. 125. Effective date and transitional and other rules. Subtitle C—Tax-Related Provisions Sec. 131. Premium assistance adjustment to reflect age. Sec. 132. Repeal of annual fee on health insurance providers. Sec. 133. Repeal of medical device excise tax. Sec. 134. Inclusion in income of certain costs of employer-provided coverage under health plans. Sec. 135. Inclusion of certain over-the-counter medical products as qualified medical expenses. Sec. 136. Repeal of limitation on health flexible spending arrangements. Sec. 137. Medicare part D tax deduction. Sec. 138. Repeal of net investment income tax. Sec. 139. Basis for purposes of determining gain or loss. Sec. 140. Deduction for qualified charity care. Sec. 141. Limitation on liability for volunteer health care professionals. TITLE II—MEDICARE AND MEDICAID REFORMS Subtitle A—Medicare and Medicaid Reforms Sec. 201. Flexible block grant option for States. Sec. 202. Medicaid eligibility determinations. VerDate Sep 11 2014 00:03 Mar 15, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6211 E:\BILLS\H1332.IH H1332 pamtmann on DSKBFK8HB2PROD with BILLS 3 •HR 1332 IH Sec. 203. Lowering safe harbor threshold with respect to State taxes on health care providers. Sec. 204. Income limitations for refundable credits for coverage under a quali- fied health plan. Subtitle B—Medicare Sec. 221. Off-campus provider-based department medicare site neutral pay- ment. Sec. 222. Elimination of Medicare eligibility for certain individuals. Sec. 223. Medicare coverage of bad debt. Subtitle C—Medical Malpractice Reform Sec. 231. Encouraging speedy resolution of claims. Sec. 232. Compensating patient injury. Sec. 233. Maximizing patient recovery. Sec. 234. Authorization of payment of future damages to claimants in health care lawsuits. Sec. 235. Product liability for health care providers. Sec. 236. Definitions. Sec. 237. Effect on other laws. Sec. 238. Rules of construction. Sec. 239. Effective date. Sec. 240. Limitation on expert witness testimony. Sec. 241. Communications following unanticipated outcome. Sec. 242. Expert witness qualifications. Sec. 243. Affidavit of merit. Sec. 244. Notice of intent to commence lawsuit. TITLE III—PRESCRIPTION DRUG COMPETITION Subtitle A—Eliminating Delays of Generic Drugs and Biosimilar Products Sec. 301. Actions for delays of generic drugs and biosimilar biological products. Sec. 302. REMS approval process for subsequent filers. Subtitle B—Increasing Access to Drugs and Biosimilar Products Sec. 311. Expedited development and priority review for generic complex drug products. Sec. 312. Increasing pharmaceutical options to treat an unmet medical need. Sec. 313. Preemption of State barriers to the substitution of biosimilar prod- ucts. Subtitle C—Limiting Exclusivity Periods Delaying Competition Sec. 321. Limiting exclusivity periods for drugs treating rare diseases and con- ditions. Sec. 322. Limiting exclusivity for biosimilar products. Subtitle D—Congressional Review of Agency Rulemaking Sec. 331. Congressional review of the Food and Drug Administration rule- making. Sec. 332. Government Accountability Office study of rules. Subtitle E—Medicare Prescription Drug Competition VerDate Sep 11 2014 00:03 Mar 15, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6211 E:\BILLS\H1332.IH H1332 pamtmann on DSKBFK8HB2PROD with BILLS 4 •HR 1332 IH Sec. 341. Medicare drug coverage. Sec. 342. PBM transparency and elimination of DIR fees. Sec. 343. Sunset of limit on maximum rebate amount for single source drugs and innovator multiple source drugs. Sec. 344. Regulation of manufacturer-sponsored copay contributions. Sec. 345. Data reporting to improve the transparency regarding how 340B hos- pital covered entities provide care for patients. Sec. 346. Requiring 340B drug discount program reports by DSH hospital cov- ered entities on low-income utilization rate of outpatient hos- pital services. TITLE IV—PROVIDER COMPETITION Sec. 401. Hospital consolidation. Sec. 402. Price transparency. Sec. 403. Repealing shared savings incentives from Medicare shared savings program. Sec. 404. Repeal of health care reform provisions limiting Medicare exception to the prohibition on certain physician referrals for hospitals. Sec. 405. Advisory group on reducing burden of hospital administrative require- ments. Sec. 406. Authority of Federal Trade Commission over certain tax-exempt or- ganizations. TITLE V—DIGITAL HEALTH CARE Sec. 501. Access of individuals to protected health information. Sec. 502. Expansion of coverage of telehealth services. Sec. 503. STARK and AKS exemptions. Sec. 504. STARK technical penalty. TITLE I—PRIVATE-SECTOR 1 HEALTH INSURANCE REFORMS 2 Subtitle A—Commercial Health 3 Insurance Provisions 4 SEC. 101. INVISIBLE HIGH RISK POOL REINSURANCE PRO- 5 GRAM; TAX ON EXCHANGE PLANS. 6 (a) ESTABLISHMENT.—Not later than January 1, 7 2021, the Secretary of Health and Human Services shall 8 establish the Invisible High Risk Pool Reinsurance Pro- 9 gram (in this section referred to as the ‘‘IHRPR pro- 10 gram’’). 11 VerDate Sep 11 2014 00:03 Mar 15, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H1332.IH H1332 pamtmann on DSKBFK8HB2PROD with BILLS 5 •HR 1332 IH (b) STATE GRANTS.—Under the IHRPR program, 1 the Secretary shall, from amounts appropriated under 2 subsection (f) for a fiscal year, award grants to States for 3 such fiscal year, in amounts determined in accordance 4 with the allocation methodology specified under subsection 5 (d). Such grants shall be used for the purpose of estab- 6 lishing or maintaining a qualifying invisible high risk pool 7 for the State. 8 (c) FEDERAL DEFAULT.— 9 (1) IN GENERAL.—In the case of a State that 10 does not, by a date and in a manner specified by the 11 Secretary, choose to be awarded a grant under sub- 12 section (b) for a fiscal year to operate a qualifying 13 invisible high risk pool for the State, the Secretary 14 shall, from amounts appropriated under subsection 15 (f) for such fiscal year, use the allocation determined 16 for the State under subsection (d) for participation 17 of such State in the Federal default qualifying invis- 18 ible high risk pool described in paragraph (2). 19 (2) FEDERAL DEFAULT QUALIFYING INVISIBLE 20 HIGH RISK POOL.—The Federal default qualifying 21 high risk pool is, with respect to each State that 22 chooses not to be awarded a grant under subsection 23 (b) with respect to a fiscal year for which funds are 24 appropriated under subsection (f), an invisible high 25 VerDate Sep 11 2014 00:03 Mar 15, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H1332.IH H1332 pamtmann on DSKBFK8HB2PROD with BILLS 6 •HR 1332 IH risk pool under which health insurance issuers par- 1 ticipating in the Exchange of such a State, with re- 2 spect to designated individuals who are enrolled in 3 health insurance coverage and are expected to expe- 4 rience higher than average health costs as deter- 5 mined by the insurer, cede risk to the pool, without 6 affecting the premium paid by the designated indi- 7 viduals or their terms of coverage. With respect to 8 such pool— 9 (A) high-risk individuals designated for 10 cession to the pool shall be designated by the 11 ceding issuer; 12 (B) the premium amount the ceding issuer 13 shall pay to the reinsurance pool shall be 90 14 percent of the premium paid to the issuer for 15 the coverage; 16 (C) the ceding issuer shall retain the same 17 risk under the ceded policies as under any other 18 policy of the issuer with respect to the first 19 $10,000 of benefits for each ceded policy in- 20 volved and will not retain any risk under ceded 21 policies after such first $10,000 of benefits; and 22 (D) after a ceding issuer, with respect to 23 a ceded policy, no longer retains risk under 24 such policy pursuant to subparagraph (C), the 25 VerDate Sep 11 2014 00:03 Mar 15, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H1332.IH H1332 pamtmann on DSKBFK8HB2PROD with BILLS 7 •HR 1332 IH negotiated rate under such policy for items and 1 services shall be payable at the reimbursement 2 rate under the Medicare program under title 3 XVIII of the Social Security Act for such items 4 and services, or in the case of items and serv- 5 ices for which payment is available under the 6 policy but not the Medicare program, at a rate 7 determined by the Secretary. 8 (d) ALLOCATION METHODOLOGY.—Not later than 9 June 30, 2020, the Secretary shall specify an allocation 10 methodology for determining the amount of funds appro- 11 priated under subsection (f) for a fiscal year to be allo- 12 cated for each State for purposes of subsections (b) and 13 (c). Such methodology shall be based on the number of 14 residents of each State and the general health status of 15 such residents. 16 (e) QUALIFYING INVISIBLE HIGH RISK POOL.—For 17 purposes of this section, the term ‘‘qualifying invisible 18 high risk pool’’ means, with respect to a State, a method 19 of designation under which health insurance issuers iden- 20 tify individuals who experience higher than average health 21 costs as determined by the State and are enrolled in health 22 insurance coverage offered in the individual market, and 23 cede the risk of spending more than $10,000 on health 24 care services for a single individual to the pool without 25 VerDate Sep 11 2014 00:03 Mar 15, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H1332.IH H1332 pamtmann on DSKBFK8HB2PROD with BILLS 8 •HR 1332 IH affecting the premium paid by the designated individuals 1 or their terms of coverage. With respect to such pool, the 2 State, or an entity operating the pool on behalf of the 3 State, shall establish— 4 (1) the premium amount the ceding issuer shall 5 pay to the reinsurance pool; 6 (2) the applicable attachment points or coinsur- 7 ance percentages if the ceding issuer retains any 8 portion of the risk under ceded policies, except that 9 the provisions of subparagraphs (C) and (D) of sub- 10 section (c)(2) shall apply to such high risk pool in 11 the same manner as such clauses apply to the Fed- 12 eral default high risk pool; and 13 (3) the mechanism by which high-risk individ- 14 uals are designated for cession to the pool, which 15 may include a list of designated high-cost health 16 conditions. 17 (f) APPROPRIATIONS.—There is appropriated to the 18 Secretary of Health and Human Services 19 $200,000,000,000 to carry out this section for the period 20 of fiscal year 2020 through fiscal year 2029. 21 (g) TAX ON HEALTH INSURANCE PLANS SOLD ON 22 EXCHANGES.— 23 VerDate Sep 11 2014 00:03 Mar 15, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H1332.IH H1332 pamtmann on DSKBFK8HB2PROD with BILLS 9 •HR 1332 IH (1) IN GENERAL.—Chapter 34 of the Internal 1 Revenue Code of 1986 is amended by adding at the 2 end the following new subchapter: 3 ‘‘Subchapter C—Additional Tax on Health In- 4 surance Plans Sold by Insurers Offering 5 Plans on Exchanges 6 ‘‘Sec. 4401. Additional tax on health insurance plans sold by insurers offering plans on exchanges. ‘‘SEC. 4401. ADDITIONAL TAX ON HEALTH INSURANCE 7 PLANS SOLD BY INSURERS OFFERING PLANS 8 ON EXCHANGES. 9 ‘‘(a) IMPOSITION OF TAX.—There is imposed a tax 10 of $4 for each policy month of each health insurance policy 11 sold by insurers offering plans through an Exchange es- 12 tablished under the Patient Protection and Affordable 13 Care Act. 14 ‘‘(b) LIABILITY.—The tax imposed by subsection (a) 15 shall be paid by the plan sponsor.’’. 16 (2) CONFORMING AMENDMENT.—The table of 17 subchapters for chapter 34 of the Internal Revenue 18 Code of 1986 is amended by adding at the end the 19 following item: 20 ‘‘SUBCHAPTER C—ADDITIONAL TAX ON HEALTH INSURANCE PLANS SOLD BY INSURERS OFFERING PLANS ON EXCHANGES’’. (3) EFFECTIVE DATE.—The amendments made 21 by this subsection shall apply with respect to months 22 beginning after the date of enactment of this Act. 23 VerDate Sep 11 2014 00:03 Mar 15, [Text truncated for display. Full text available on Congress.gov.]