Protect Act

II Calendar No. 554 116TH CONGRESS 2D SESSION S. 4675 To amend the Health Insurance Portability and Accountability Act. IN THE SENATE OF THE UNITED STATES SEPTEMBER 23, 2020 Mr. TILLIS introduced the following bill; which was read the first time SEPTEMBER 24, 2020 Read the second time and placed on the calendar 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. FINDINGS. 5 Congress finds as follows: 6 (1) In President Obama’s last year in office, 7 Obamacare’s high costs exposed working Americans 8 VerDate Sep 11 2014 22:08 Sep 24, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S4675.PCS S4675 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 4675 PCS to potential health insurance coverage loss, the most 1 extreme form of lacking pre-existing conditions pro- 2 tection. That year, there was a 20 percent decrease 3 in enrollment in plans offered on the Exchange 4 among working Americans who earned too much to 5 receive a premium tax credit subsidy, but not 6 enough to cover the over 105 percent increases in 7 premiums under Obamacare. 8 (2) In 2015, nearly 80 percent of the house- 9 holds who paid the individual mandate tax earned 10 less than $50,000 per year. 11 (3) Recognizing this unfair burden, in Decem- 12 ber 2017, Congress acted to restore freedom and lib- 13 erty to Americans by eliminating the penalty for 14 noncompliance with such individual mandate. 15 (4) Obamacare is not the only way to protect 16 Americans with pre-existing conditions. 17 (5) Obamacare’s one-size-fits-all approach un- 18 dermines States’ ability to care for their populations 19 and left many Americans unable to afford any health 20 insurance in the individual market. 21 (6) Congress will protect individuals with pre- 22 existing conditions if the Supreme Court ultimately 23 determines in Texas v. California that Obamacare is 24 unconstitutional. 25 VerDate Sep 11 2014 22:08 Sep 24, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S4675.PCS S4675 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 4675 PCS SEC. 3. GUARANTEED AVAILABILITY OF COVERAGE; PRO- 1 HIBITING DISCRIMINATION. 2 (a) IN GENERAL.—Subtitle C of title I of the Health 3 Insurance Portability and Accountability Act of 1996 4 (Public Law 104–191) is amended by adding at the end 5 the following: 6 ‘‘SEC. 196. PROHIBITION OF PRE-EXISTING CONDITION EX- 7 CLUSIONS. 8 ‘‘(a) IN GENERAL.—A group health plan and a health 9 insurance issuer offering group or individual health insur- 10 ance coverage may not impose any pre-existing condition 11 exclusion with respect to such plan or coverage. 12 ‘‘(b) DEFINITIONS.—For purposes of this section: 13 ‘‘(1) PRE-EXISTING CONDITION EXCLUSION.— 14 ‘‘(A) IN GENERAL.—The term ‘pre-existing 15 condition exclusion’ means, with respect to cov- 16 erage, a limitation or exclusion of benefits relat- 17 ing to a condition based on the fact that the 18 condition was present before the enrollment 19 date for such coverage, whether or not any 20 medical advice, diagnosis, care, or treatment 21 was recommended or received before such date. 22 ‘‘(B) TREATMENT OF GENETIC INFORMA- 23 TION.—Genetic information shall not be treated 24 as a condition described in subparagraph (A) in 25 VerDate Sep 11 2014 22:08 Sep 24, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S4675.PCS S4675 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 4675 PCS the absence of a diagnosis of the condition re- 1 lated to such information. 2 ‘‘(2) ENROLLMENT DATE.—The term ‘enroll- 3 ment date’ means, with respect to an individual cov- 4 ered under a group health plan or health insurance 5 coverage, the date of enrollment of the individual in 6 the plan or coverage or, if earlier, the first day of 7 the waiting period for such enrollment. 8 ‘‘(3) WAITING PERIOD.—The term ‘waiting pe- 9 riod’ means, with respect to a group health plan and 10 an individual who is a potential participant or bene- 11 ficiary in the plan, the period that must pass with 12 respect to the individual before the individual is eli- 13 gible to be covered for benefits under the terms of 14 the plan. 15 ‘‘SEC. 197. GUARANTEED AVAILABILITY OF COVERAGE. 16 ‘‘(a) GUARANTEED ISSUANCE OF COVERAGE IN THE 17 INDIVIDUAL AND GROUP MARKET.—Subject to sub- 18 sections (b) through (d), each health insurance issuer that 19 offers health insurance coverage in the individual or group 20 market in a State must accept every employer and indi- 21 vidual in the State that applies for such coverage. 22 ‘‘(b) ENROLLMENT.— 23 ‘‘(1) RESTRICTION.—A health insurance issuer 24 described in subsection (a) may restrict enrollment 25 VerDate Sep 11 2014 22:08 Sep 24, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S4675.PCS S4675 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 4675 PCS in coverage described in such subsection to open or 1 special enrollment periods. 2 ‘‘(2) ESTABLISHMENT.—A health insurance 3 issuer described in subsection (a) shall, in accord- 4 ance with the regulations promulgated under para- 5 graph (3), establish special enrollment periods for 6 qualifying events (under section 603 of the Em- 7 ployee Retirement Income Security Act of 1974). 8 ‘‘(3) REGULATIONS.—The Secretary shall pro- 9 mulgate regulations with respect to enrollment peri- 10 ods under paragraphs (1) and (2). 11 ‘‘(c) SPECIAL RULES FOR NETWORK PLANS.— 12 ‘‘(1) IN GENERAL.—In the case of a health in- 13 surance issuer that offers health insurance coverage 14 in the group and individual market through a net- 15 work plan, the issuer may— 16 ‘‘(A) limit the employers that may apply 17 for such coverage to those with eligible individ- 18 uals who live, work, or reside in the service area 19 for such network plan; and 20 ‘‘(B) within the service area of such plan, 21 deny such coverage to such employers and indi- 22 viduals if the issuer has demonstrated, if re- 23 quired, to the applicable State authority that— 24 VerDate Sep 11 2014 22:08 Sep 24, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S4675.PCS S4675 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 4675 PCS ‘‘(i) it will not have the capacity to de- 1 liver services adequately to enrollees of any 2 additional groups or any additional individ- 3 uals because of its obligations to existing 4 group contract holders and enrollees; and 5 ‘‘(ii) it is applying this paragraph uni- 6 formly to all employers and individuals 7 without regard to the claims experience of 8 those individuals, employers and their em- 9 ployees (and their dependents), or any 10 health status-related factor relating to 11 such individuals, employees, and depend- 12 ents. 13 ‘‘(2) 180-DAY SUSPENSION UPON DENIAL OF 14 COVERAGE.—An issuer, upon denying health insur- 15 ance coverage in any service area in accordance with 16 paragraph (1)(B), may not offer coverage in the 17 group or individual market within such service area 18 for a period of 180 days after the date such cov- 19 erage is denied. 20 ‘‘(d) APPLICATION OF FINANCIAL CAPACITY LIM- 21 ITS.— 22 ‘‘(1) IN GENERAL.—A health insurance issuer 23 may deny health insurance coverage in the group or 24 VerDate Sep 11 2014 22:08 Sep 24, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S4675.PCS S4675 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 4675 PCS individual market if the issuer has demonstrated, if 1 required, to the applicable State authority that— 2 ‘‘(A) it does not have the financial reserves 3 necessary to underwrite additional coverage; 4 and 5 ‘‘(B) it is applying this paragraph uni- 6 formly to all employers and individuals in the 7 group or individual market in the State con- 8 sistent with applicable State law and without 9 regard to the claims experience of those individ- 10 uals, employers and their employees (and their 11 dependents) or any health status-related factor 12 relating to such individuals, employees, and de- 13 pendents. 14 ‘‘(2) 180-DAY SUSPENSION UPON DENIAL OF 15 COVERAGE.—A health insurance issuer upon denying 16 health insurance coverage in connection with group 17 health plans in accordance with paragraph (1) in a 18 State may not offer coverage in connection with 19 group health plans in the group or individual market 20 in the State for a period of 180 days after the date 21 such coverage is denied or until the issuer has dem- 22 onstrated to the applicable State authority, if re- 23 quired under applicable State law, that the issuer 24 has sufficient financial reserves to underwrite addi- 25 VerDate Sep 11 2014 22:08 Sep 24, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S4675.PCS S4675 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 4675 PCS tional coverage, whichever is later. An applicable 1 State authority may provide for the application of 2 this subsection on a service-area-specific basis 3 ‘‘(e) DEFINITIONS.—In this section and in sections 4 196 and 198: 5 ‘‘(1) The term ‘Secretary’ means the Secretary 6 of Health and Human Services. 7 ‘‘(2) The terms ‘genetic information’, ‘genetic 8 test’, ‘group health plan’, ‘group market’, ‘health in- 9 surance coverage’, ‘health insurance issuer’, ‘group 10 health insurance coverage’, ‘individual health insur- 11 ance coverage’, ‘individual market’, and ‘under- 12 writing purpose’ have the meanings given such terms 13 in section 2791 of the Public Health Service Act.’’. 14 ‘‘SEC. 198. PROHIBITING DISCRIMINATION AGAINST INDI- 15 VIDUAL PARTICIPANTS AND BENEFICIARIES 16 BASED ON HEALTH STATUS. 17 ‘‘(a) IN GENERAL.—A group health plan and a health 18 insurance issuer offering group or individual health insur- 19 ance coverage may not establish rules for eligibility (in- 20 cluding continued eligibility) of any individual to enroll 21 under the terms of the plan or coverage based on any of 22 the following health status-related factors in relation to 23 the individual or a dependent of the individual: 24 ‘‘(1) Health status. 25 VerDate Sep 11 2014 22:08 Sep 24, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S4675.PCS S4675 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 4675 PCS ‘‘(2) Medical condition (including both physical 1 and mental illnesses). 2 ‘‘(3) Claims experience. 3 ‘‘(4) Receipt of health care. 4 ‘‘(5) Medical history. 5 ‘‘(6) Genetic information. 6 ‘‘(7) Evidence of insurability (including condi- 7 tions arising out of acts of domestic violence). 8 ‘‘(8) Disability. 9 ‘‘(9) Any other health status-related factor de- 10 termined appropriate by the Secretary. 11 ‘‘(b) IN PREMIUM CONTRIBUTIONS.— 12 ‘‘(1) IN GENERAL.—A group health plan, and a 13 health insurance issuer offering group or individual 14 health insurance coverage, may not require any indi- 15 vidual (as a condition of enrollment or continued en- 16 rollment under the plan) to pay a premium or con- 17 tribution which is greater than such premium or 18 contribution for a similarly situated individual en- 19 rolled in the plan on the basis of any health status- 20 related factor in relation to the individual or to an 21 individual enrolled under the plan as a dependent of 22 the individual. 23 ‘‘(2) CONSTRUCTION.—Nothing in paragraph 24 (1) shall be construed— 25 VerDate Sep 11 2014 22:08 Sep 24, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S4675.PCS S4675 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 4675 PCS ‘‘(A) to restrict the amount that an em- 1 ployer or individual may be charged for cov- 2 erage under a group health plan except as pro- 3 vided in paragraph (3) or individual health cov- 4 erage, as the case may be; or 5 ‘‘(B) to prevent a group health plan, and 6 a health insurance issuer offering group health 7 insurance coverage, from establishing premium 8 discounts or rebates or modifying otherwise ap- 9 plicable copayments or deductibles in return for 10 adherence to programs of health promotion and 11 disease prevention. 12 ‘‘(3) NO GROUP-BASED DISCRIMINATION ON 13 BASIS OF GENETIC INFORMATION.— 14 ‘‘(A) IN GENERAL.—For purposes of this 15 section, a group health plan, and health insur- 16 ance issuer offering group health insurance cov- 17 erage in connection with a group health plan, 18 may not adjust premium or contribution 19 amounts for the group covered under such plan 20 on the basis of genetic information. 21 ‘‘(B) RULE OF CONSTRUCTION.—Nothing 22 in subparagraph (A) or in paragraphs (1) and 23 (2) of subsection (d) shall be construed to limit 24 the ability of a health insurance issuer offering 25 VerDate Sep 11 2014 22:08 Sep 24, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S4675.PCS S4675 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 4675 PCS group or individual health insurance coverage to 1 increase the premium for an employer based on 2 the manifestation of a disease or disorder of an 3 individual who is enrolled in the plan. In such 4 case, the manifestation of a disease or disorder 5 in one individual cannot also be used as genetic 6 information about other group members and to 7 further increase the premium for the employer. 8 ‘‘(c) GENETIC TESTING.— 9 ‘‘(1) LIMITATION ON REQUESTING OR REQUIR- 10 ING GENETIC TESTING.—A group health plan, and a 11 health insurance issuer offering health insurance 12 coverage in connection with a group health plan, 13 shall not request or require an individual or a family 14 member of such individual to undergo a genetic test. 15 ‘‘(2) RULE OF CONSTRUCTION.—Paragraph (1) 16 shall not be construed to limit the authority of a 17 health care professional who is providing health care 18 services to an individual to request that such indi- 19 vidual undergo a genetic test. 20 ‘‘(3) RULE OF CONSTRUCTION REGARDING PAY- 21 MENT.— 22 ‘‘(A) IN GENERAL.—Nothing in paragraph 23 (1) shall be construed to preclude a group 24 health plan, or a health insurance issuer offer- 25 VerDate Sep 11 2014 22:08 Sep 24, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S4675.PCS S4675 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 4675 PCS ing health insurance coverage in connection 1 with a group health plan, from obtaining and 2 using the results of a genetic test in making a 3 determination regarding payment (as such term 4 is defined for the purposes of applying the regu- 5 lations promulgated by the Secretary under 6 part C of title XI of the Social Security Act and 7 section 264 of this Act, as may be revised from 8 time to time) consistent with subsection (a). 9 ‘‘(B) LIMITATION.—For purposes of sub- 10 paragraph (A), a group health plan, or a health 11 insurance issuer offering health insurance cov- 12 erage in co [Text truncated for display. 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