Ensuring Lasting Smiles Act

II 116TH CONGRESS 1ST SESSION S. 560 To amend the Public Health Service Act, the Employee Retirement Income Security Act of 1974, and the Internal Revenue Code of 1986 to require that group and individual health insurance coverage and group health plans provide coverage for treatment of a congenital anomaly or birth defect. IN THE SENATE OF THE UNITED STATES FEBRUARY 26, 2019 Ms. BALDWIN (for herself, Ms. ERNST, Ms. MURKOWSKI, and Mr. BROWN) introduced the following bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions A BILL To amend the Public Health Service Act, the Employee Re- tirement Income Security Act of 1974, and the Internal Revenue Code of 1986 to require that group and indi- vidual health insurance coverage and group health plans provide coverage for 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 02:28 Mar 02, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S560.IS S560 kjohnson on DSK79L0C42 with BILLS 2 •S 560 IS SEC. 2. COVERAGE OF CONGENITAL ANOMALY OR BIRTH 1 DEFECT. 2 (a) PUBLIC HEALTH SERVICE ACT AMENDMENTS.— 3 (1) IN GENERAL.—Title XXVII of the Public 4 Health Service Act is amended by inserting after 5 section 2729 (42 U.S.C. 300gg–19b), the following: 6 ‘‘SEC. 2730. STANDARDS RELATING TO BENEFITS FOR CON- 7 GENITAL 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 services related to the diag- 14 nosis and treatment of a congenital anomaly or birth 15 defect. 16 ‘‘(2) REQUIREMENTS.—Coverage provided 17 under paragraph (1) shall include any service to 18 functionally improve, repair, or restore any body 19 part that is medically necessary to achieve normal 20 body functioning or appearance, as determined by 21 the treating physician (as defined in section 1861 of 22 the Social Security Act). Any coverage provided 23 under such paragraph may be subject to coverage 24 limits, such as pre-authorization or pre-certification, 25 as required by the plan or issuer that are no more 26 VerDate Sep 11 2014 02:28 Mar 02, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S560.IS S560 kjohnson on DSK79L0C42 with BILLS 3 •S 560 IS restrictive than the predominant treatment limita- 1 tions applied to substantially all medical and sur- 2 gical benefits covered by the plan (or coverage). 3 ‘‘(3) TREATMENT DEFINED.— 4 ‘‘(A) IN GENERAL.—Except as provided in 5 subparagraph (B), in this section, the term 6 ‘treatment’ includes patient and outpatient care 7 and services performed to improve or restore 8 body function (or performed to approximate a 9 normal appearance), due to congenital anomaly 10 or birth defect and shall include treatment to 11 any and all missing or abnormal body parts, 12 (including teeth, the oral cavity, and their asso- 13 ciated structures) that would otherwise be pro- 14 vided under the plan or coverage for any other 15 injury and sickness, including— 16 ‘‘(i) inpatient and outpatient care, re- 17 constructive services and procedures, and 18 complications thereof, including prosthetics 19 and appliances; 20 ‘‘(ii) adjunctive dental, orthodontic or 21 prosthodontic support from birth until the 22 medical or surgical treatment of the defect 23 or anomaly has been completed, including 24 ongoing or subsequent treatment required 25 VerDate Sep 11 2014 02:28 Mar 02, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S560.IS S560 kjohnson on DSK79L0C42 with BILLS 4 •S 560 IS to maintain function or approximate a nor- 1 mal appearance; 2 ‘‘(iii) procedures that do not materi- 3 ally restore or improve the function of the 4 body part being treated; and 5 ‘‘(iv) procedures for secondary condi- 6 tions and follow-up treatment. 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(b) of the Employee Retirement Income Security Act 14 of 1974 with respect to the requirements of this section 15 as if such section applied to such plan.’’. 16 (2) TECHNICAL AMENDMENTS.— 17 (A) Section 2724(c) of the Public Health 18 Service Act (42 U.S.C. 300gg–23(c)) is amend- 19 ed by striking ‘‘section 2704’’ and inserting 20 ‘‘sections 2725 and 2730’’. 21 (B) Section 2762(b)(2) of the Public 22 Health Service Act (42 U.S.C. 300gg–62(b)(2)) 23 is amended by striking ‘‘section 2751’’ and in- 24 serting ‘‘sections 2730 and 2751’’. 25 VerDate Sep 11 2014 02:28 Mar 02, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S560.IS S560 kjohnson on DSK79L0C42 with BILLS 5 •S 560 IS (b) ERISA AMENDMENTS.— 1 (1) IN GENERAL.—Subpart B of part 7 of sub- 2 title B of title I of the Employee Retirement Income 3 Security Act of 1974 is amended by adding at the 4 end the following: 5 ‘‘SEC. 716. STANDARDS RELATING TO BENEFITS FOR CON- 6 GENITAL ANOMALY OR BIRTH DEFECT. 7 ‘‘(a) REQUIREMENTS FOR RECONSTRUCTIVE TREAT- 8 MENT.— 9 ‘‘(1) IN GENERAL.—A group health plan, and a 10 health insurance issuer offering group or individual 11 health insurance coverage, shall provide coverage for 12 outpatient and inpatient services related to the diag- 13 nosis and treatment of a congenital anomaly or birth 14 defect. 15 ‘‘(2) REQUIREMENTS.—Coverage provided 16 under paragraph (1) shall include any service to 17 functionally improve, repair, or restore any body 18 part that is medically necessary to achieve normal 19 body functioning or appearance, as determined by 20 the treating physician (as defined in section 1861 of 21 the Social Security Act). Any coverage provided 22 under such paragraph may be subject to coverage 23 limits, such as pre-authorization or pre-certification, 24 as required by the plan or issuer that are no more 25 VerDate Sep 11 2014 02:28 Mar 02, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S560.IS S560 kjohnson on DSK79L0C42 with BILLS 6 •S 560 IS restrictive than the predominant treatment limita- 1 tions applied to substantially all medical and sur- 2 gical benefits covered by the plan (or coverage). 3 ‘‘(3) TREATMENT DEFINED.— 4 ‘‘(A) IN GENERAL.—Except as provided in 5 subparagraph (B), in this section, the term 6 ‘treatment’ includes patient and outpatient care 7 and services performed to improve or restore 8 body function (or performed to approximate a 9 normal appearance), due to congenital anomaly 10 or birth defect and shall include treatment to 11 any and all missing or abnormal body parts, 12 (including teeth, the oral cavity, and their asso- 13 ciated structures) that would otherwise be pro- 14 vided under the plan or coverage for any other 15 injury and sickness, including— 16 ‘‘(i) inpatient and outpatient care, re- 17 constructive services and procedures, and 18 complications thereof, including prosthetics 19 and appliances; 20 ‘‘(ii) adjunctive dental, orthodontic or 21 prosthodontic support from birth until the 22 medical or surgical treatment of the defect 23 or anomaly has been completed, including 24 ongoing or subsequent treatment required 25 VerDate Sep 11 2014 02:28 Mar 02, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S560.IS S560 kjohnson on DSK79L0C42 with BILLS 7 •S 560 IS to maintain function or approximate a nor- 1 mal appearance; 2 ‘‘(iii) procedures that do not materi- 3 ally restore or improve the function of the 4 body part being treated; and 5 ‘‘(iv) procedures for secondary condi- 6 tions and follow-up treatment. 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 UNDER GROUP HEALTH PLAN.—The 12 imposition of the requirements of this section shall be 13 treated as a material modification in the terms of the plan 14 described in the last sentence of section 102(a), for pur- 15 poses of assuring notice of such requirements under the 16 plan, except that the summary description required to be 17 provided under the fourth sentence of section 104(b)(1) 18 with respect to such modification shall be provided by not 19 later than 60 days after the first day of the first plan 20 year in which such requirements apply.’’. 21 (2) TECHNICAL AMENDMENTS.— 22 (A) Section 731(c) of such Act (29 U.S.C. 23 1191(c)) is amended by striking ‘‘section 711’’ 24 and inserting ‘‘sections 711 and 716’’. 25 VerDate Sep 11 2014 02:28 Mar 02, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S560.IS S560 kjohnson on DSK79L0C42 with BILLS 8 •S 560 IS (B) Section 732(a) of such Act (29 U.S.C. 1 1191a(a)) is amended by striking ‘‘section 711’’ 2 and inserting ‘‘sections 711 and 716’’. 3 (C) The table of contents in section 1 of 4 such Act is amended by inserting after the item 5 relating to section 714 the following new items: 6 Sec. 715. Additional market reforms. Sec. 716. Standards relating to benefits for congenital anomaly or birth defect. (c) INTERNAL REVENUE CODE AMENDMENTS.— 7 (1) IN GENERAL.—Subchapter B of chapter 8 100 of the Internal Revenue Code of 1986, as 9 amended by subsection (f) of the section 1563 (relat- 10 ing to conforming amendments) of Public Law 111– 11 148, is amended by adding at the end the following: 12 ‘‘SEC. 9816. STANDARDS RELATING TO BENEFITS FOR CON- 13 GENITAL ANOMALY OR BIRTH DEFECT. 14 ‘‘(a) REQUIREMENTS FOR RECONSTRUCTIVE TREAT- 15 MENT.—A group health plan, and a health insurance 16 issuer offering group or individual health insurance cov- 17 erage, shall provide coverage for outpatient and inpatient 18 services related to the diagnosis and treatment of a con- 19 genital anomaly or birth defect. 20 ‘‘(b) REQUIREMENTS.—Coverage provided under 21 subsection (a) shall include any service to functionally im- 22 prove, repair, or restore any body part that is medically 23 necessary to achieve normal body functioning or appear- 24 VerDate Sep 11 2014 02:28 Mar 02, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S560.IS S560 kjohnson on DSK79L0C42 with BILLS 9 •S 560 IS ance, as determined by the treating physician (as defined 1 in section 1861 of the Social Security Act). Any coverage 2 provided under such subsection may be subject to coverage 3 limits, such as pre-authorization or pre-certification, as re- 4 quired by the plan or issuer that are no more restrictive 5 than the predominant treatment limitations applied to 6 substantially all medical and surgical benefits covered by 7 the plan (or coverage). 8 ‘‘(c) TREATMENT DEFINED.— 9 ‘‘(1) IN GENERAL.—Except as provided in para- 10 graph (2), in this section, the term ‘treatment’ in- 11 cludes patient and outpatient care and services per- 12 formed to improve or restore body function (or per- 13 formed to approximate a normal appearance), due to 14 congenital anomaly or birth defect and shall include 15 treatment to any and all missing or abnormal body 16 parts, (including teeth, the oral cavity, and their as- 17 sociated structures) that would otherwise be pro- 18 vided under the plan or coverage for any other in- 19 jury and sickness, including— 20 ‘‘(A) inpatient and outpatient care, recon- 21 structive services and procedures, and complica- 22 tions thereof, including prosthetics and appli- 23 ances; 24 VerDate Sep 11 2014 02:28 Mar 02, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S560.IS S560 kjohnson on DSK79L0C42 with BILLS 10 •S 560 IS ‘‘(B) adjunctive dental, orthodontic or 1 prosthodontic support from birth until the med- 2 ical or surgical treatment of the defect or 3 anomaly has been completed, including ongoing 4 or subsequent treatment required to maintain 5 function or approximate a normal appearance; 6 ‘‘(C) procedures that do not materially re- 7 store or improve the function of the body part 8 being treated; and 9 ‘‘(D) procedures for secondary conditions 10 and follow-up treatment. 11 ‘‘(2) EXCEPTION.—The term ‘treatment’ shall 12 not include cosmetic surgery performed to reshape 13 normal structures of the body to improve appearance 14 or self-esteem.’’. 15 (2) CLERICAL AMENDMENT.—The table of sec- 16 tions for such subchapter is amended by adding at 17 the end the following new items: 18 ‘‘Sec. 9815. Additional market reforms. ‘‘Sec. 9816. Standards relating to benefits for congenital anomaly or birth de- fect.’’. (d) CLARIFYING AMENDMENT REGARDING APPLICA- 19 TION TO GRANDFATHERED PLANS.—Section 20 1251(a)(4)(A) of the Patient Protection and Affordable 21 Care Act (42 U.S.C. 18011(a)(4)(A)), is amended by add- 22 ing at the end the following: 23 VerDate Sep 11 2014 02:28 Mar 02, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S560.IS S560 kjohnson on DSK79L0C42 with BILLS 11 •S 560 IS ‘‘(v) Section 2730 (relating to stand- 1 ards relating to benefits for congenital 2 anomaly or birth defect), as added by sec- 3 tion 2(a) of the Ensuring Lasting Smiles 4 Act.’’. 5 (e) EFFECTIVE DATE.—The amendments made by 6 this section shall apply with respect to group health plans 7 for plan years beginning on or after January 1, 2020, and 8 with respect to health insurance coverage offered, sold, 9 issued, renewed, in effect, or operated in the individual 10 market on or after such date. 11 (f) COORDINATED REGULATIONS.—Section 104(1) of 12 the Health Insurance Portability and Accountability Act 13 of 1996 is amended by striking ‘‘this subtitle (and the 14 amendments made by this subtitle and section 401)’’ and 15 inserting ‘‘the provisions of part 7 of subtitle B of title 16 I of the Employee Retirement Income Security Act of 17 1974, the provisions of parts A and C of title XXVII of 18 the Public Health Service Act, and chapter 100 of the In- 19 ternal Revenue Code of 1986’’. 20 Æ VerDate Sep 11 2014 02:28 Mar 02, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6301 E:\BILLS\S560.IS S560 kjohnson on DSK79L0C42 with BILLS