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STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
(Senate - February 27, 1997)

Text of this article available as: TXT PDF [Pages S1734-S1762] STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS By Mr. BOND (for himself and Mr. Ashcroft): S. 368. A bill to prohibit the use of Federal funds for human cloning research; to the Committee on Labor and Human Resources. RESEARCH LEGISLATION Mr. BOND. Mr. President, today I rise to introduce a measure on behalf of myself, Senator Ashcroft, and Senator Byrd which would prohibit permanently the use of Federal funds for human cloning research. I am sure most Americans by now have heard about the successful cloning of Dolly, the sheep, by Scottish scientists. Many people are now asking can similar techniques be used to clone a human being? Something that was once thought to be only science fiction is now close to being a reality. With the legislation I introduce today, I intend to make sure that human cloning stays within the realm of science fiction and does not become a reality. The bill that I am introducing with my colleagues today will place a permanent ban on Federal funding for human cloning or human cloning research. We must send a clear signal: Human cloning is something we cannot and should not tolerate. This type of research on humans is morally reprehensible. We should not be creating human beings for spare parts or as replacements. Moreover, a National Institutes of Health human embryo panel noted, ``allowing society to create genetically identical persons would devalue human life by undermining the individuality of human beings.'' In a September 1994 report of the Human Embryo Research Panel, the heading is, ``Research Considered Unacceptable for Federal Funding.'' It said: [[Page S1735]] Four ethical considerations entered into the deliberations of the panel as it determined what types of research were unacceptable for Federal funding: The potential adverse consequences of the research for children, women and men; the respect due the reimplantation embryo; concern for public sensitivities in highly controversial research proposals, and concern for the meaning of humanness, parenthood, and the successions of generations. The President has said we should study the issue. President Clinton has asked a Federal bioethicist board to consider the implications of this research and report back to him within 90 days. I do not think we need to study this. I think we can save the board some effort because the President's own administration has concluded that human cloning was ``research considered unacceptable for Federal funding.'' There are some aspects of life which simply ought to be off limits to science. I think it will be helpful to go through some of the ethical considerations the board looked at. First, they asked: Is it ethical to create genetically identical individuals who can be born at different times? Is it ethical to store a frozen human embryo that is genetically identical to a born child in order to serve as a later source for organ and tissue transplantation; thus treating humans as spare parts? Is it ethical to create a genetically identical child as a replacement in case the first child dies? Again, these are just a sample of the ethical questions the issue poses. The board concluded the analysis by stating: There are broad moral concerns about the deliberate duplication of an individual genome. The notion of cloning an existing human being or of making ``carbon copies'' of an existing embryo appears repugnant to members of the public. Many Members of the panel share this view and see no justification for Federal funding of such research. I also should point out an important distinction with this bill. It is narrowly drafted so that it only affects human cloning research. It does not address the issue of plant and animal cloning research, and it will also allow--and I personally strongly support--NIH to continue its human genome mapping project. I have long been a supporter of biotechnology, genome mapping and manipulation, and even plant and animal cloning. But we can draw a clear line here. For plants and animals, it makes sense to clone your specimens to improve human health and human well-being. But when we are talking about creating an entire human being, identical to another, we are talking about playing God, and that is where we must draw the line. I note, the Vatican and leading ethicists throughout the country have called for a ban on human cloning and human cloning research. I ask unanimous consent that the names of those ethicists and scientists be printed in the Record. There being no objection, the material was ordered to be printed in the Record, as follows: Dr. Ted Cicero, Vice Chancellor for Research at Washington University in St. Louis, Missouri. Dr. Kevin Fitzgerald, a Jesuit priest and a geneticist at Loyola University in Illinois. Arthur Caplan, head of the Center for Bioethics at the University of Pennsylvania. Dr. Harmon Smith, Professor of Moral Theology at Duke University. ______ By Mr. JEFFORDS (for himself, Mr. Kennedy, Mr. Chafee, Ms. Mikulski, Ms. Collins, Mrs. Murray, Mr. Dodd, Mr. Hollings, Mr. Glenn and Mr. Reed): S. 369. A bill to amend section 1128B of the Social Security Act to repeal the criminal penalty for fraudulent disposition of assets in order to obtain medicaid benefits added by section 217 of the Health Insurance Portability and Accountability Act of 1996; to the Committee on Finance. HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AMENDMENTS Mr. JEFFORDS. Mr. President, I am on the floor today to introduce legislation that will repeal section 217 of the Health Insurance Portability and Accountability Act [HIPAA]. As enacted last year, this provision for the first time creates Federal criminal penalties for elders who transfer their assets and who subsequently apply for Medicaid but are deemed ineligible for nursing home benefits. I believe the goal to stop fraud and abuse in the Medicaid Program is laudable and must be pursued. However, there is a growing consensus that section 217 is a vague, unenforceable, criminal sanction misdirected at the elderly. It is unduly threatening to the Nation's senior citizens. We are sending the wrong message by implying there is something wrong or illegal with obtaining sound financial advice and estate planning to legitimately protect the assets that senior citizens have spent a lifetime accruing. During a recent hearing before the Committee on Labor and Human Resources, on the implementation of HIPAA, several concerns were raised about this issue. Ms. Gail Shearer, the director of health policy analysis of the Consumers Union, testified that section 217 was ``leading to considerable alarm among seniors'' and that she was ``deeply troubled by the prospect of HIPAA leading to the transfer of elderly nursing home residents from their nursing home to prison.'' At that same hearing, Mr. Bruce Vladek, the administrator of the Health Care Financing Administration, pointed out that there is no evidence that large numbers of the elderly are impoverishing themselves to become Medicaid eligible. He expressed his belief that a few people doing something egregious can create the perception of a widespread problem. It is especially unclear how pervasive this practice is, particularly in light of actions already taken by Congress to curb these asset transfers. Repeal of section 217 would not affect several other restrictions now on the books designed to close loopholes and stop the inappropriate transfer of assets. People found to have transferred nonexempt assets within a look-back period are determined ineligible and denied Medicaid nursing home assistance for the period over which their assets would have paid. The look-back period for asset transfers is 36 months, with a 60-month period for trusts. States are also required to establish estate recovery programs to compensate for nursing home services paid for by the Medicaid Program. There is no systematic study that has determined or recommended that the addition of criminal sanctions to the penalties which already exist are necessary to address inappropriate asset transfers by the elderly. In the absence of a demonstrated need for criminal penalties, we believe that section 217 holds the potential to do more harm than good. No one really wants to send Granny to jail. In fact, it has been reported that the intended targets of section 217 are those who have created a cottage industry, and made substantial sums of money, from advising the elderly on how to transfer their assets to become Medicaid eligible. Ironically, section 217 has had the opposite effect. Recent newspaper ads placed by these advisers from Portland, ME, to Phoenix, AZ, now use this very law to drum up business. The bold-print headlines of these ads read: Sneaky New Law Buried in the Health Insurance Bill Can Put Unsuspecting Seniors and Retirees Behind Bars!, and You Only Have Until December 31st, 1996, To Avoid Making the Mistake That Could Toss You in Jail . . . Congress' Sneaky New Law Is the Most Vicious Attack on Retirees Yet! Mr. President, fraud and abuse in the Medicaid Program must not be tolerated, and taxpayers should not have to pay nursing home bills for persons who have the wherewithal to pay for their own care. But neither should confusing, unenforceable laws be in place that impose Federal criminal penalties on elderly individuals where there is no clear understanding of what does and what does not constitute a criminal activity. Organizations urging repeal of the provision include: the American Association of Retired Persons, the Alzheimer's Association, the Leadership Council on Aging--a group of more than 40 national organizations in the field of aging--and the American Bar Association. I believe that we in the Congress owe it to our senior citizens to stop their needless anxiety over this misdirected, confusing law. We need to repeal section 217. I urge my colleagues to join me in repealing this unnecessary and unworkable law. Mr. President, I ask unanimous-consent that the text of the bill be printed in the Record. [[Page S1736]] There being no objection, the bill was ordered to be printed in the Record, as follows: S. 369 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. REPEAL OF CRIMINAL PENALTY FOR FRAUDULENT DISPOSITION OF ASSETS IN ORDER TO OBTAIN MEDICAID BENEFITS. (a) Repeal.--Section 1128B(a) of the Social Security Act (42 U.S.C. 1320a-7b(a)), as amended by section 217 of the Health Insurance Portability and Accountability Act of 1996 (Public Law 104-191; 110 Stat. 2008), is amended-- (1) by adding ``or'' at the end of paragraph (4); (2) by striking ``or'' at the end of paragraph (5) and inserting a comma; and (3) by striking paragraph (6). (b) Effective Date.--The amendments made by subsection (a) take effect as if included in the enactment of the Health Insurance Portability and Accountability Act of 1996 (Public Law 104-191; 110 Stat. 1936). Mr. KENNEDY. Mr. President, I commend Senator Jeffords for his leadership on this legislation and I am honored to join him on it. Our bill repeals the criminal penalties enacted last year for disposing of assets in order to obtain Medicaid benefits. We all agree that Medicaid must be free of fraud and abuse. No one should be able to game the system by giving away their assets just to qualify for Medicaid, a program intended to help the truly needy. The criminal penalties enacted last year was a mistake and should never have been enacted. They are poorly drafted, and will have unintended consequences that penalize senior citizens unfairly. Indeed, this provision could frighten the most needy elderly away from seeking the care they need, while doing little to deter and punish those who defraud the system. No serious study has defined abusive transfers of assets as a significant problem, or recommended criminalizing an action that is already prohibited and penalized in other ways. If middle and upper income families are transferring assets to qualify for Medicaid, it should be the topic of congressional hearings and investigation, so that we can evaluate the scope of the problem and develop an appropriate response. In the meantime, seniors should not be terrorized with threats of jail merely for seeking nursing home care. The current debate over this issue reveals a much larger problem--the need for better coverage of long-term care, so that those requiring long nursing home stays don't have to sacrifice their life savings to pay for their care. There is broad bipartisan support in Congress for repeal of this provision. The White House supports repeal. Advocacy groups for the elderly support repeal. I urge Congress to act quickly on this legislation, and provide peace of mind to senior citizens across the country who feel unfairly threatened by current law. ______ By Mr. GRASSLEY (for himself, Mr. Conrad, and Mr. Hollings): S. 370. A bill to amend title XVIII of the Social Security Act to provide for increased Medicare reimbursement for nurse practitioners and clinical nurse specialists to increase the delivery of health services in health professional shortage areas, and for other purposes; to the Committee on Finance. THE PRIMARY CARE HEALTH PRACTITIONER INCENTIVE ACT OF 1997 Mr. GRASSLEY. Mr. President, today, on behalf of myself, Senator Conrad, Senator Dorgan, and Senator Hollings, I am introducing two bills. If enacted, these bills would increase access to primary care for Medicare beneficiaries in rural and inner-city communities. The Primary Care Health Practitioner Incentive Act of 1997 would reform Medicare reimbursement to nurse practitioners [NP's] and clinical nurse specialists [CNS's]. The Physician Assistant Incentive Act of 1997 would reform Medicare reimbursement for physician assistants. We introduced these bills in the last three Congresses. We are reintroducing them today to improve access to primary care services for Medicare beneficiaries, particularly in rural and underserved areas. This legislation would reform Medicare policies which, under certain circumstances, restrict reimbursement for services delivered by these providers. Similar measures are included in the President's Medicare proposal and were part of the Balanced Budget Act of 1995. The Medicare Program currently covers the services of these practitioners. However, payment levels vary depending on treatment settings and geographic area. In most cases, reimbursement may not be made directly to the nonphysician provider. Rather, it must be made to the employer of the provider, often a physician. The legislation authorizing these different reimbursement arrangements was passed in an incremental fashion over the years. The Medicare law, which authorizes reimbursement of these providers, is also inconsistent with State law in many cases. For instance, in Iowa, State law requires nonphysicians to practice with either a supervising physician or a collaborating physician. However, under Iowa law, the supervising physician need not be physically present in the same facility as the nonphysician practitioner and, in many instances, can be located in a different site from that of the nonphysician practitioner he or she is supervising. Unfortunately, Medicare policy will not recognize such relationships. Instead, the law requires that the physician be present in the same building as the nonphysician practitioner in order for the services of these nonphysician providers to be reimbursed. This is known as the incident to provision, referring to services that are provided incident to a physician's services. This has created a problem in Iowa, Mr. President. In many parts of my State, clinics have been established using nonphysician practitioners, particularly physician assistants, to provide primary health care services in communities that are unable to recruit a physician. The presence of these practitioners insures that primary health care services will be available to the community. Iowa's Medicare carrier has strictly interpreted the incident to requirement of Medicare law as requiring the physical presence of a supervising physician in places where physician assistants practice. This has caused many of the clinics using physician assistants to close, and thus has deprived the community of primary health care services. Mr. President, in 1995 the Iowa Hospital Association suggested a number of ways to improve access and cost effectiveness in the Medicare Program. One of their suggestions was that this incident to restriction be relaxed. They said: In rural Iowa, most physicians are organized in solo or small group practices. Physician assistants are used to augment these practices. With emergency room coverage requirements, absences due to vacation, continuing education or illness and office hours in satellite clinics, there are instances on a monthly basis where the physician assistant is providing care to patients without a physician in the clinic. Medicare patients in the physician clinic where the physician assistant is located have to either wait for the physician to return from the emergency room or care is provided without this provision. If enacted, this legislation would establish a more uniform payment policy for these providers. It would authorize reimbursement of their services as long as they were practicing within State law and their professional scope of practice. It calls for reimbursement of these provider groups at 85 percent of the physician fee schedule for services they provide in all treatment settings and in all geographic areas. Where it is permitted under State law, reimbursement would be authorized even if these nonphysician providers are not under the direct, physical supervision of a physician. Currently, the services of these nonphysician practitioners are paid at 100 percent of the physician's rate when provided ``incident to'' a physician's services. If enacted, this legislation would discontinue this ``incident to'' policy. Medicare reimbursement would now be provided directly to the nurse practitioners and clinical nurse specialists and it would be provided to the employer of the physician assistant. These bills also call for a 10-percent bonus payment when these practitioners work in health professional shortage areas [HPSA's]. Senator Conrad and I believe these provisions will encourage nonphysician practitioners to relocate in areas in need of health care services. Mr. President, legislation closely paralleling these bills we are introducing today is being introduced this week in the House by Representatives Nancy [[Page S1737]] Johnson and Ed Towns. In addition, these provisions are included in the President's Medicare proposal. Historically, this legislation has received bipartisan support in both Houses. Comparable legislation was included in the Balanced Budget Act of 1995, as well as several other health care measures in previous Congresses. Therefore, I urge my colleagues to support this legislation. Mr. HOLLINGS. Mr. President, I join my colleagues Senators Conrad and Grassley in introducing the Primary Care Health Practitioner Incentive Act of 1997. Today I specifically want to address the provision that would allow for direct Medicare reimbursement for services provided by nurse practitioners and clinical nurse specialists regardless of geographic location. For many years we have been trying to pass legislation that would allow these health care providers in urban settings the same direct Medicare reimbursement as those in a rural setting, and I am hopeful that this is the year it will actually be enacted. Currently, nurse practitioners and clinical nurse specialists may treat Medicare patients without a physician present if they practice in a rural setting or in a long-term care facility. I believe that it is time for this antiquated restraint to practice to be removed so that health care choices may be improved and increased for all Medicare patients. If we are to have any hope of providing adequate care with huge reductions in both Medicare and Medicaid, it is essential that service be provided by the least costly provider of quality care. We simply cannot afford to ignore the quality care of which nurse practitioners and clinical nurse specialists have proven they are capable. I would also like to point out that many times there is a discrepancy in the designation of rural and urban areas. In my home State of South Carolina, as in other States, a number of the areas listed as urban are, in reality, rural areas. Medicare patients in these areas are unable to receive home visits or utilize local community satellite offices staffed with nurse practitioners. Rather, they are required to travel miles to see a physician. As a result, many patients forgo preventive health care and wait to seek care until they become so ill that they must be hospitalized or they are forced to seek care in more expensive emergency rooms. Not only is access to physicians more limited, but their fees for services are usually higher as well. Recent figures published by the American Academy of Nurse Practitioners estimate a cost savings of greater than $54 million per year if nurse practitioners were utilized appropriately in the provision of Medicare services in ambulatory care settings. The primary objective of nurse practitioners and clinical nurse specialists is to provide routine care, manage chronic conditions, promote preventive health care, and make medical care more accessible and less expensive. Nurse practitioners and clinical nurse specialists have proven that they are able to provide high-quality, cost-effective primary care in all settings in which they provide services. It is foolish to restrict their ability to provide primary care services to the elderly based on setting or geographic location, and I urge your consideration and the passage of this bill. ______ By Mr. GRASSLEY (for himself, Mr. Conrad, and Mr. Hollings): S. 371. A bill to amend title XVIII of the Social Security Act to provide for increased medicare reimbursement for physician assistants, to increase the delivery of health services in health professional shortage areas, and for other purposes; to the Committee on Finance. THE PHYSICIAN ASSISTANT INCENTIVE ACT OF 1997 Mr. CONRAD. Mr. President, Senator Grassley and I are again introducing legislation to improve Medicare reimbursement policy for nurse practitioners, clinical nurse specialists, and physician assistants. The Primary Care Health Practitioner Incentive Act and the Physician Assistant Incentive Act of 1997 are very similar to S. 864 and S. 863, which we introduced in the 104th Congress. This legislation passed both Houses as part of reconciliation in 1995. I am very hopeful that this bipartisan legislation will garner widespread support and be signed into law as part of a Medicare reform bill this year. We believe our legislation will help all Americans by making the best possible use of primary care providers who play a vital role in our health care delivery infrastructure. Throughout the country, nurse practitioners, clinical nurse specialists and physician assistants have the skills to provide needed primary care services. This is particularly important in rural and underserved areas that have shortages of physicians. In recent years, our Nation's health care system has put a renewed emphasis on the use of primary care and wellness. Nurse practitioners, physician assistants, and clinical nurse specialists are uniquely positioned to provide this care. Nurse practitioners are registered nurses with advanced education and clinical training, often in a specialty area such as geriatrics or women's health. Nearly half of the Nation's 25,000 nurse practitioners have master's degrees. Clinical nurse specialists are required to have master's degrees and usually work in teritary care settings such as cardiac care. Many, however, also work in primary care. Physician assistants receive an average of 2 years of physician-supervised clinical training and classroom instruction and work in all setting providing diagnostic, therapeutic, and preventive care services. Each of these providers work with physicians in varying degrees usually in consultation. Within their areas of competence, these health care providers deliver care of exceptional quality. These practitioners play a vital role in communities that cannot support a physician but can afford a nurse practitioner or physician assistant; historically, these providers have been willing to move to both rural and inner-city areas that are underserved by health care providers. In fact, there are 50 communities in North Dakota that are taking advantage of the services provided by these care givers. Unfortunately, unless we make changes in our Federal reimbursement scheme, many areas of the country will not be able to benefit from these needed services. Current Medicare reimbursement rules were developed in an ad hoc fashion; as a result, they are inconsistent, incoherent, and nearly inexplicable. Current law provides reimbursement for advanced practice nurses in rural settings. But if the same patient sees the same nurse practitioner in a satellite clinic in an equally rural community that happens to be within an MSA county, reimbursement becomes subject to the ``incident to'' rule that HCFA has interpreted to require the physical presence of a physician in the building. In rural North Dakota and in rural communities throughout the country, that scenario is often inconsistent with the realities of health care delivery. Doctors in these areas often rotate between several clinics in a region that is staffed on a full-time basis by a physician assistant, nurse practitioner, or other provider. This allows physicians to cover a wider area and affords more rural residents access to basic primary care services. Current Medicare rules work against this, however. If a Medicare patient requires care when a physician is away at another clinic or out on an emergency call, the physician assistant or other provider will not be reimbursed by Medicare for the same care that would have been paid for if a physician was in the next room. Moreover, if the nurse practitioner crosses the street from a free- standing clinic to a hospital-affiliated outpatient clinic, the reimbursement rules change once again. Physician assistants are subject to an equally bewildering set of reimbursement rules that serve to prevent their effective use by the Medicare Program. Other complications also cause problems. State laws are often inconsistent with the Medicare requirements. In North Dakota, care provided by a physician assistant is reimbursed even if a physician is not present. Across the country, there also are a wide variety of payment mechanisms that result in reimbursement variations in different settings and among different providers. The Office of Technology Assessment, the Physician Payment Review Commission, and these providers themselves have all expressed the need for consistency and sensibility in a reimbursement system that acknowledges [[Page S1738]] the reality of today's medical marketplace. Our colleagues shared those sentiments in 1995 by passing this legislation in both Houses. The legislation Senator Grassley and I are introducing today will provide each of these groups with reimbursement at 85 percent of the physician fee schedule. They will also provide a bonus payment to those providers who choose to practice in areas designated as Health Professional Shortage Areas [HPSA's]. The health care access problems faced by residents of these communities could be dramatically improved through the use of this special class of primary care providers. Finally, our legislation will ensure that a nurse practitioner who cares for a patient will get paid directly for that service. This legislation offers an example how Medicare can and should increase access to care by promoting the use of cost-effective providers to a much higher degree without compromising the quality of care that older Americans receive. There was a clear agreement on these issues in the 104th Congress, and we urge our Democratic and Republican colleagues to continue to support this legislation in the 105th Congress. ______ By Mr. GRASSLEY: S. 372. A bill to amend title XVIII of the Social Security Act to provide for a 5-year reinstatement of the Medicare-dependent, small, rural hospital payment provisions, and for other purposes; to the Committee on Finance. THE MEDICARE DEPENDENT HOSPITALS PROGRAM REINSTATEMENT ACT Mr. GRASSLEY. Mr. President, I introduce a bill which would reinstate the Medicare-Dependent Hospital Program. This program expired in October 1994. As its title implied, the hospitals it helped were those which were very dependent on Medicare reimbursement. These were small--100 beds or less--rural hospitals with not less than 60 percent of total discharges or with 60 percent of total inpatient days attributable to Medicare beneficiaries. The program enabled the hospitals in question to choose the most favorable of three reimbursement methods. The program was extended, and phased out down to October 1994, in the Omnibus Budget Reconciliation Act of 1993. That act retained the choice of the three original reimbursement methods. But it reduced the reimbursement available from those original computation methods by 50 percent. My legislation would not extend the program as it was originally enacted by the Omnibus Budget Reconciliation Act of 1989. Rather, it would reinstate for 5 years the provisions contained in the Omnibus Budget Reconciliation Act of 1993. It would not have retroactive effect, however. The program would be revived for fiscal year 1998, and would terminate at the end of fiscal year 2002. As I noted above, the hospitals which would benefit from this program are small, rural hospitals providing an essential point of access to hospital and hospital-based services in rural areas and small towns. Obviously, if we lose these hospitals, we will also have a hard time keeping physicians in those communities. Mr. President, 44, or 36 percent, of Iowa's 122 community hospitals qualified to participate in this program in 1994, and 29, or 24 percent, chose to participate. I believe that this was the largest number of such hospitals of any State. For these hospitals, the percentage of all inpatient days attributable to Medicare patients was 77.4 percent in 1994, and Medicare discharges represented 65.5 percent of total discharges. Across all Iowa hospitals, the Association of Iowa Hospitals and Health Systems indicates that the Medicare share of inpatient days and discharges has increased in recent years, as non-Medicare admissions have dropped. As a result, it is likely that the program will provide a lifeline for even more Iowa hospitals now than in 1994. The expiration of the program has had a devastating effect on many of these hospitals, including a number with negative operating margins. The bottom line is that many of these hospitals have had, and will have, a very difficult time continuing to exist without the Medicare- Dependent Hospital Program. Mr. President, I am also going to continue to work for a limited service rural hospital bill. This bill will essentially extend the EACH/RPCH Program--the Essential Access Community Hospital and Rural Primary Care Hospital Program--to all the States. Taken together, these two pieces of legislation will allow the smaller hospitals in Iowa--and throughout America--to modify their missions in a deliberate and nondisruptive way, and to continue to provide the health care services essential to their communities. ______ By Mr. KENNEDY: S. 373. A bill to amend title XXVII of the Public Health Service Act and part 7 of subtitle B of title I of the Employee Retirement Income Security Act of 1974 to establish standards for protection of consumers in managed care plans and other health plans; to the Committee on Labor and Human Resources. the health insurance bill of rights act of 1997 Mr. KENNEDY. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record. There being no objection, the bill was ordered to be printed in the Record, as follows: S. 373 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE; TABLE OF CONTENTS. (a) Short Title.--This Act may be cited as the ``Health Insurance Bill of Rights Act of 1997''. (b) Table of Contents.--The table of contents of this Act is as follows: Sec. 1. Short title; table of contents. Sec. 2. Amendments to the Public Health Service Act. ``Part C--Patient Protection Standards ``Sec. 2770. Notice; additional definitions. ``Subpart 1--Access to Care ``Sec. 2771. Access to emergency care. ``Sec. 2772. Access to specialty care. ``Sec. 2773. Continuity of care. ``Sec. 2774. Choice of provider. ``Sec. 2775. Coverage for individuals participating in approved clinical trials. ``Sec. 2776. Access to needed prescription drugs. ``Subpart 2--Quality Assurance ``Sec. 2777. Internal quality assurance program. ``Sec. 2778. Collection of standardized data. ``Sec. 2779. Process for selection of providers. ``Sec. 2780. Drug utilization program. ``Sec. 2781. Standards for utilization review activities. ``Subpart 3--Patient Information ``Sec. 2782. Patient information. ``Sec. 2783. Protection of patient confidentiality. ``Subpart 4--Grievance Procedures ``Sec. 2784. Establishment of complaint and appeals process. ``Sec. 2785. Provisions relating to appeals of utilization review determinations and similar determinations. ``Sec. 2786. State health insurance ombudsmen. ``Subpart 5--Protection of Providers Against Interference with Medical Communications and Improper Incentive Arrangements ``Sec. 2787. Prohibition of interference with certain medical communications. ``Sec. 2788. Prohibition against transfer of indemnification or improper incentive arrangements. ``Subpart 6--Promoting Good Medical Practice and Protecting the Doctor- Patient Relationship ``Sec. 2789. Promoting good medical practice. Sec. 3. Amendments to the Employee Retirement Income Security Act of 1974. ``Sec. 713. Patient protection standards. SEC. 2. AMENDMENTS TO THE PUBLIC HEALTH SERVICE ACT. (a) Patient Protection Standards.--Title XXVII of the Public Health Service Act is amended-- (1) by redesignating part C as part D, and (2) by inserting after part B the following new part: ``Part C--Patient Protection Standards ``SEC. 2770. NOTICE; ADDITIONAL DEFINITIONS. ``(a) Notice.--A health insurance issuer under this part shall comply with the notice requirement under section 711(d) of the Employee Retirement Income Security Act of 1974 with respect to the requirements of this part as if such section applied to such issuer and such issuer were a group health plan. ``(b) Additional Definitions.--For purposes of this part: [[Page S1739]] ``(1) Nonparticipating physician or provider.--The term `nonparticipating physician or provider' means, with respect to health care items and services furnished to an enrollee under health insurance coverage, a physician or provider that is not a participating physician or provider for such services. ``(2) Participating physician or provider.--The term `participating physician or provider' means, with respect to health care items and services furnished to an enrollee under health insurance coverage, a physician or provider that furnishes such items and services under a contract or other arrangement with the health insurance issuer offering such coverage. ``Subpart 1--Access to Care ``SEC. 2771. ACCESS TO EMERGENCY CARE. ``(a) Prohibition of Certain Restrictions on Coverage of Emergency Services. ``(1) In general.--If health insurance coverage provides any benefits with respect to emergency services (as defined in paragraph (2)(B)), the health insurance issuer offering such coverage shall cover emergency services furnished to an enrollee-- ``(A) without the need for any prior authorization determination, ``(B) subject to paragraph (3), whether or not the physician or provider furnishing such services is a participating physician or provider with respect to such services, and ``(C) subject to paragraph (3), without regard to any other term or condition of such coverage (other than an exclusion of benefits, or an affiliation or waiting period, permitted under section 2701). ``(2) Emergency services; emergency medical condition.--For purposes of this section-- ``(A) Emergency medical condition based on prudent layperson.--The term `emergency medical condition' means a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent layperson, who possesses an average knowledge of health and medicine, could reasonably expect the absence of immediate medical attention to result in-- ``(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy, ``(ii) serious impairment to bodily functions, or ``(iii) serious dysfunction of any bodily organ or part. ``(B) Emergency services.--The term `emergency services' means-- ``(i) a medical screening examination (as required under section 1867 of the Social Security Act) that is within the capability of the emergency department of a hospital, including ancillary services routinely available to the emergency department, to evaluate an emergency medical condition (as defined in subparagraph (A)), and ``(ii) within the capabilities of the staff and facilities available at the hospital, such further medical examination and treatment as are required under section 1867 of the Social Security Act to stabilize the patient. ``(C) Trauma and burn centers.--The provisions of clause (ii) of subparagraph (B) apply to a trauma or burn center, in a hospital, that-- ``(i) is designated by the State, a regional authority of the State, or by the designee of the State, or ``(ii) is in a State that has not made such designations and meets medically recognized national standards. ``(3) Application of network restriction permitted in certain cases.-- ``(A) In general.--Except as provided in subparagraph (B), if a health insurance issuer in relation to health insurance coverage denies, limits, or otherwise differentiates in coverage or payment for benefits other than emergency services on the basis that the physician or provider of such services is a nonparticipating physician or provider, the issuer may deny, limit, or differentiate in coverage or payment for emergency services on such basis. ``(B) Network restrictions not permitted in certain exceptional cases.--The denial or limitation of, or differentiation in, coverage or payment of benefits for emergency services under subparagraph (A) shall not apply in the following cases: ``(i) Circumstances beyond control of enrollee.--The enrollee is unable to go to a participating hospital for such services due to circumstances beyond the control of the enrollee (as determined consistent with guidelines and subparagraph (C)). ``(ii) Likelihood of an adverse health consequence based on layperson's judgment.--A prudent layperson possessing an average knowledge of health and medicine could reasonably believe that, under the circumstances and consistent with guidelines, the time required to go to a participating hospital for such services could result in any of the adverse health consequences described in a clause of subsection (a)(2)(A). ``(iii) Physician referral.--A participating physician or other person authorized by the plan refers the enrollee to an emergency department of a hospital and does not specify an emergency department of a hospital that is a participating hospital with respect to such services. ``(C) Application of `beyond control' standards.--For purposes of applying subparagraph (B)(i), receipt of emergency services from a nonparticipating hospital shall be treated under the guidelines as being `due to circumstances beyond the control of the enrollee' if any of the following conditions are met: ``(i) Unconscious.--The enrollee was unconscious or in an otherwise altered mental state at the time of initiation of the services. ``(ii) Ambulance delivery.--The enrollee was transported by an ambulance or other emergency vehicle directed by a person other than the enrollee to the nonparticipating hospital in which the services were provided. ``(iii) Natural disaster.--A natural disaster or civil disturbance prevented the enrollee from presenting to a participating hospital for the provision of such services. ``(iv) No good faith effort to inform of change in participation during a contract year.--The status of the hospital changed from a participating hospital to a nonparticipating hospital with respect to emergency services during a contract year and the plan or issuer failed to make a good faith effort to notify the enrollee involved of such change. ``(v) Other conditions.--There were other factors (such as those identified in guidelines) that prevented the enrollee from controlling selection of the hospital in which the services were provided. ``(b) Assuring Coordinated Coverage of Maintenance Care and Post-Stabilization Care.-- ``(1) In general.--In the case of an enrollee who is covered under health insurance coverage issued by a health insurance issuer and who has received emergency services pursuant to a screening evaluation conducted (or supervised) by a treating physician at a hospital that is a nonparticipating provider with respect to emergency services, if-- ``(A) pursuant to such evaluation, the physician identifies post-stabilization care (as defined in paragraph (3)(B)) that is required by the enrollee, ``(B) the coverage provides benefits with respect to the care so identified and the coverage requires (but for this subsection) an affirmative prior authorization determination as a condition of coverage of such care, and ``(C) the treating physician (or another individual acting on behalf of such physician) initiates, not later than 30 minutes after the time the treating physician determines that the condition of the enrollee is stabilized, a good faith effort to contact a physician or other person authorized by the issuer (by telephone or other means) to obtain an affirmative prior authorization determination with respect to the care, then, without regard to terms and conditions specified in paragraph (2) the issuer shall cover maintenance care (as defined in paragraph (3)(A)) furnished to the enrollee during the period specified in paragraph (4) and shall cover post- stabilization care furnished to the enrollee during the period beginning under paragraph (5) and ending under paragraph (6). ``(2) Terms and conditions waived.--The terms and conditions (of coverage) described in this paragraph that are waived under paragraph (1) are as follows: ``(A) The need for any prior authorization determination. ``(B) Any limitation on coverage based on whether or not the physician or provider furnishing the care is a participating physician or provider with respect to such care. ``(C) Any other term or condition of the coverage (other than an exclusion of benefits, or an affiliation or waiting period, permitted under section 2701 and other than a requirement relating to medical necessity for coverage of benefits). ``(3) Maintenance care and post-stabilization care defined.--In this subsection: ``(A) Maintenance care.--The term `maintenance care' means, with respect to an individual who is stabilized after provision of emergency services, medically necessary items and services (other than emergency services) that are required by the individual to ensure that the individual remains stabilized during the period described in paragraph (4). ``(B) Post-stabilization care.--The term `post- stabilization care' means, with respect to an individual who is determined to be stable pursuant to a medical screening examination or who is stabilized after provision of emergency services, medically necessary items and services (other than emergency services and other than maintenance care) that are required by the individual. ``(4) Period of required coverage of maintenance care.--The period of required coverage of maintenance care of an individual under this subsection begins at the time of the request (or the initiation of the good faith effort to make the request) under paragraph (1)(C) and ends when-- ``(A) the individual is discharged from the hospital; ``(B) a physician (designated by the issuer involved) and with privileges at the hospital involved arrives at the emergency department of the hospital and assumes responsibility with respect to the treatment of the individual; or ``(C) the treating physician and the issuer agree to another arrangement with respect to the care of the individual. ``(5) When post-stabilization care required to be covered.-- ``(A) When treating physician unable to communicate request.--If the treating physician or other individual makes the good faith effort to request authorization under [[Page S1740]] paragraph (1)(C) but is unable to communicate the request directly with an authorized person referred to in such paragraph within 30 minutes after the time of initiating such effort, then post-stabilization care is required to be covered under this subsection beginning at the end of such 30-minute period. ``(B) When able to communicate request, and no timely response.-- ``(i) In general.--If the treating physician or other individual under paragraph (1)(C) is able to communicate the request within the 30-minute period described in subparagraph (A), the post-stabilization care requested is required to be covered under this subsection beginning 30 minutes after the time when the issuer receives the request unless a person authorized by the plan or issuer involved communicates (or makes a good faith effort to communicate) a denial of the request for the prior authorization determination within 30 minutes of the time when the issuer receives the request and the treating physician does not request under clause (ii) to communicate directly with an authorized physician concerning the denial. ``(ii) Request for direct physician-to-physician communication concerning denial.--If a denial of a request is communicated under clause (i), the treating physician may request to communicate respecting the denial directly with a physician who is authorized by the issuer to deny or affirm such a denial. ``(C) When no timely response to request for physician-to- physician communication.--If a request for physician-to- physician communication is made under subparagraph (B)(ii), the post-stabilization care requested is required to be covered under this subsection beginning 30 minutes after the time when the issuer receives the request from a treating physician unless a physician, who is authorized by the issuer to reverse or affirm the initial denial of the care, communicates (or makes a good faith effort to communicate) directly with the treating physician within such 30-minute period. ``(D) Disagreements over post-stabilization care.--If, after a direct physician-to-physician communication under subparagraph (C), the denial of the request for the post- stabilization care is not reversed and the treating physician communicates to the issuer involved a disagreement with such decision, the post-stabilization care requested is required to be covered under this subsection beginning as follows: ``(i) Delay to allow for prompt arrival of physician assuming responsibility.--If the issuer communicates that a physician (designated by the plan or issuer) with privileges at the hospital involved will arrive promptly (as determined under guidelines) at the emergency department of the hospital in order to assume responsibility with respect to the treatment of the enrollee involved, the required coverage of the post-stabilization care begins after the passage of such time period as would allow the prompt arrival of such a physician. ``(ii) Other cases.--If the issuer does not so communicate, the required coverage of the post-stabilization care begins immediately. ``(6) No requirement of coverage of post-stabilization care if alternate plan of treatment.-- ``(A) In general.--Coverage of post-stabilization care is not required under this subsection with respect to an individual when-- ``(i) subject to subparagraph (B), a physician (designated by the plan or issuer involved) and with privileges at the hospital involved arrives at the emergency department of the hospital and assumes responsibility with respect to the treatment of the individual; or ``(ii) the treating physician and the issuer agree to another arrangement with respect to the post-stabilization care (such as an appropriate transfer of the individual involved to another facility or an appointment for timely followup treatment for the individual). ``(B) Special rule where once care initiated.--Required coverage of requested post-stabilization care shall not end by reason of subparagraph (A)(i) during an episode of care (as determined by guidelines) if the treating physician initiated such care (consistent with a previous paragraph) before the arrival of a physician described in such subparagraph. ``(7) Construction.--Nothing in this subsection shall be construed as-- ``(A) preventing an issuer from authorizing coverage of maintenance care or post-stabilization care in advance or at any time; or ``(B) preventing a treating physician or other individual described in paragraph (1)(C) and an issuer from agreeing to modify any of the time periods specified in paragraphs (5) as it relates to cases involving such persons. ``(c) Limits on Cost-Sharing for Services Furnished in Emergency Departments.--If health insurance coverage provides any benefits with respect to emergency services, the health insurance issuer offering such coverage may impose cost sharing with respect to such services only if the following conditions are met: ``(1) Limitations on cost-sharing differential for nonparticipating providers.-- ``(A) No differential for certain services.--In the case of services furnished under the circumstances described in clause (i), (ii), or (iii) of subsection (a)(3)(B) (relating to circumstances beyond the control of the enrollee, the likelihood of an adverse health consequence based on layperson's judgment, and physician referral), the cost- sharing for such services provided by a nonparticipating provider or physician does not exceed the cost-sharing for such services provided by a participating provider or physician. ``(B) Only reasonable differential for other services.--In the case of other emergency services, any differential by which the cost-sharing for such services provided by a nonparticipating provider or physician exceeds the cost- sharing for such services provided by a participating provider or physician is reasonable (as determined under guidelines). ``(2) Only reasonable differential between emergency services and other services.--Any differential by which the cost-sharing for services furnished in an emergency department exceeds the cost-sharing for such services furnished in another setting is reasonable (as determined under guidelines). ``(3) Construction.--Nothing in paragraph (1)(B) or (2) shall be construed as authorizing guidelines other than guidelines that establish maximum cost-sharing differentials. ``(d) Information on Access to Emergency Services.--A health insurance issuer, to the extent a health insurance issuer offers health insurance coverage, shall provide education to enrollees on-- ``(1) coverage of emergency services (as defined in subsection (a)(2)(B)) by the issuer in accordance with the provisions of this section, ``(2) the appropriate use of emergency services, including use of the 911 telephone system or its local equivalent, ``(3) any cost sharing applicable to emergency services, ``(4) the process and procedures of the plan for obtaining emergency services, and ``(5) the locations of-- ``(A) emergency departments, and ``(B) other settings, in which participating physicians and hospitals provide emergency services and post-stabilization care. ``(e) General Definitions.--For purposes of this section: ``(1) Cost sharing.--The term `cost sharing' means any deductible, coinsurance amount, copayment or other out-of- pocket payment (other than premiums or enrollment fees) that a health insurance issuer offering health insurance issuer imposes on enrollees with respect to the coverage of benefits. ``(2) Good faith effort.--The term `good faith effort' has the meaning given such term in guidelines and requires such appropriate documentation as is specified under such guidelines. ``(3) Guidelines.--The term `guidelines' means guidelines established by the Secretary after consultation with an advisory panel that includes individuals representing emergency physicians, health insurance issuers, including at least one health maintenance organization, hospitals, employers, the States, and consumers. ``(4) Prior authorization determination.--The term `prior authorization determination' means, with respect to items and services for which coverage may be provided under health insurance coverage, a determination (before the provision of the items and services and as a condition of coverage of the items and services under the coverage) of whether or not such items and services will be covered under the coverage. ``(5) Stabilize.--The term `to stabilize' means, with respect to an emergency medical condition, to provide (in complying with section 1867 of the Social Security Act) such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from the facility. ``(6) Stabilized.--The term `stabilized' means, with respect to an emergency medical condition, that no material deterioration of the condition is likely, within reasonable medical probability, to result from or occur before an individual can be transferred from the facility, in compliance with the requirements of section 1867 of the Social Security Act. ``(7) Treating physician.--The term `treating physician' includes a treating health care professional who is licensed under State law to provide emergency services other than under the supervision of a physician. ``SEC. 2772. ACCESS TO SPECIALTY CARE. ``(a) Obstetrical and Gynecological Care.-- ``(1) In general.--If a health insurance issuer, in connection with the provision of health insurance coverage, requires or provides for an enrollee to designate a participating primary care provider-- ``(A) the issuer shall permit a female enrollee to designate a physician who specializes in obstetrics and gynecology as the enrollee's primary care provider; and ``(B) if such an enrollee has not designated such a provider as a primary care provider, the issuer-- ``(i) may not require prior authorization by the enrollee's primary care provider or otherwise for coverage of routine gynecological care (such as preventive women's health examinations) and pregnancy-related services provided by a participating physician who specializes in obstetrics and gynecology to [[Page S1741]] the extent such care is otherwise covered, and ``(ii) may treat the ordering of other gynecological care by such a participating physician as the prior authorization of the primary care provider with respect to such care under the coverage. ``(2) Construction.--Nothing in paragraph (1)(B)(ii) shall waive any requirements of coverage relating to medical necessity or appropriateness with respect to coverage of gynecological care so ordered. ``(b) Specialty Care.-- ``(1) Referral to specialty care for enrollees requiring treatment by specialists.-- ``(A) In general.--In the case of an enrollee who is covered under health insurance coverage offered by a health insurance issuer and who has a condition or disease of sufficient seriousness and complexity to require treatment by a specialist, the issuer shall make or provide for a referral to a specialist who is available and accessible to provide the treatment for such condition or disease. ``(B) Specialist defined.--For purposes of this subsection, the term `specialist' means, with respect to a condition, a health care practitioner, facility, or center (such as a center of excellence) that has adequate expertise through appropriate training and experience (including, in the case of a child, appropriate pediatric expertise) to provide high quality care in treating the condition. ``(C) Care under referral.--Care provided pursuant to such referral under subparagraph (A) shall be-- ``(i) pursuant to a treatment plan (if any) developed by the specialist and approved by the issuer, in consultation with the designated primary care provider or specialist and the enrollee (or the enrollee's designee), and ``(ii) in accordance with applicable quality assurance and utilization review standards of the issuer. Nothing in this subsection shall be construed as preventing such a treatment plan for an enrollee from requiring a specialist to provide the primary care provider with regular updates on the specialty care provided, as well as all necessary medical information. ``(D) Referrals to participating providers.--An issuer is not required under subparagraph (A) to provide for a referral to a specialist that is not a participating provider, unless the issuer does not have an appropriate specialist that is available and accessible to treat the enrollee's condition and that is a participating provider with respect to such treatment. ``(E) Treatment of nonparticipating providers.--If an issuer refers an enrollee to a nonparticipating specialist, services provided pursuant to the approved treatment plan shall be provided at no additional cost to the enrollee beyond what the

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STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
(Senate - February 27, 1997)

Text of this article available as: TXT PDF [Pages S1734-S1762] STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS By Mr. BOND (for himself and Mr. Ashcroft): S. 368. A bill to prohibit the use of Federal funds for human cloning research; to the Committee on Labor and Human Resources. RESEARCH LEGISLATION Mr. BOND. Mr. President, today I rise to introduce a measure on behalf of myself, Senator Ashcroft, and Senator Byrd which would prohibit permanently the use of Federal funds for human cloning research. I am sure most Americans by now have heard about the successful cloning of Dolly, the sheep, by Scottish scientists. Many people are now asking can similar techniques be used to clone a human being? Something that was once thought to be only science fiction is now close to being a reality. With the legislation I introduce today, I intend to make sure that human cloning stays within the realm of science fiction and does not become a reality. The bill that I am introducing with my colleagues today will place a permanent ban on Federal funding for human cloning or human cloning research. We must send a clear signal: Human cloning is something we cannot and should not tolerate. This type of research on humans is morally reprehensible. We should not be creating human beings for spare parts or as replacements. Moreover, a National Institutes of Health human embryo panel noted, ``allowing society to create genetically identical persons would devalue human life by undermining the individuality of human beings.'' In a September 1994 report of the Human Embryo Research Panel, the heading is, ``Research Considered Unacceptable for Federal Funding.'' It said: [[Page S1735]] Four ethical considerations entered into the deliberations of the panel as it determined what types of research were unacceptable for Federal funding: The potential adverse consequences of the research for children, women and men; the respect due the reimplantation embryo; concern for public sensitivities in highly controversial research proposals, and concern for the meaning of humanness, parenthood, and the successions of generations. The President has said we should study the issue. President Clinton has asked a Federal bioethicist board to consider the implications of this research and report back to him within 90 days. I do not think we need to study this. I think we can save the board some effort because the President's own administration has concluded that human cloning was ``research considered unacceptable for Federal funding.'' There are some aspects of life which simply ought to be off limits to science. I think it will be helpful to go through some of the ethical considerations the board looked at. First, they asked: Is it ethical to create genetically identical individuals who can be born at different times? Is it ethical to store a frozen human embryo that is genetically identical to a born child in order to serve as a later source for organ and tissue transplantation; thus treating humans as spare parts? Is it ethical to create a genetically identical child as a replacement in case the first child dies? Again, these are just a sample of the ethical questions the issue poses. The board concluded the analysis by stating: There are broad moral concerns about the deliberate duplication of an individual genome. The notion of cloning an existing human being or of making ``carbon copies'' of an existing embryo appears repugnant to members of the public. Many Members of the panel share this view and see no justification for Federal funding of such research. I also should point out an important distinction with this bill. It is narrowly drafted so that it only affects human cloning research. It does not address the issue of plant and animal cloning research, and it will also allow--and I personally strongly support--NIH to continue its human genome mapping project. I have long been a supporter of biotechnology, genome mapping and manipulation, and even plant and animal cloning. But we can draw a clear line here. For plants and animals, it makes sense to clone your specimens to improve human health and human well-being. But when we are talking about creating an entire human being, identical to another, we are talking about playing God, and that is where we must draw the line. I note, the Vatican and leading ethicists throughout the country have called for a ban on human cloning and human cloning research. I ask unanimous consent that the names of those ethicists and scientists be printed in the Record. There being no objection, the material was ordered to be printed in the Record, as follows: Dr. Ted Cicero, Vice Chancellor for Research at Washington University in St. Louis, Missouri. Dr. Kevin Fitzgerald, a Jesuit priest and a geneticist at Loyola University in Illinois. Arthur Caplan, head of the Center for Bioethics at the University of Pennsylvania. Dr. Harmon Smith, Professor of Moral Theology at Duke University. ______ By Mr. JEFFORDS (for himself, Mr. Kennedy, Mr. Chafee, Ms. Mikulski, Ms. Collins, Mrs. Murray, Mr. Dodd, Mr. Hollings, Mr. Glenn and Mr. Reed): S. 369. A bill to amend section 1128B of the Social Security Act to repeal the criminal penalty for fraudulent disposition of assets in order to obtain medicaid benefits added by section 217 of the Health Insurance Portability and Accountability Act of 1996; to the Committee on Finance. HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AMENDMENTS Mr. JEFFORDS. Mr. President, I am on the floor today to introduce legislation that will repeal section 217 of the Health Insurance Portability and Accountability Act [HIPAA]. As enacted last year, this provision for the first time creates Federal criminal penalties for elders who transfer their assets and who subsequently apply for Medicaid but are deemed ineligible for nursing home benefits. I believe the goal to stop fraud and abuse in the Medicaid Program is laudable and must be pursued. However, there is a growing consensus that section 217 is a vague, unenforceable, criminal sanction misdirected at the elderly. It is unduly threatening to the Nation's senior citizens. We are sending the wrong message by implying there is something wrong or illegal with obtaining sound financial advice and estate planning to legitimately protect the assets that senior citizens have spent a lifetime accruing. During a recent hearing before the Committee on Labor and Human Resources, on the implementation of HIPAA, several concerns were raised about this issue. Ms. Gail Shearer, the director of health policy analysis of the Consumers Union, testified that section 217 was ``leading to considerable alarm among seniors'' and that she was ``deeply troubled by the prospect of HIPAA leading to the transfer of elderly nursing home residents from their nursing home to prison.'' At that same hearing, Mr. Bruce Vladek, the administrator of the Health Care Financing Administration, pointed out that there is no evidence that large numbers of the elderly are impoverishing themselves to become Medicaid eligible. He expressed his belief that a few people doing something egregious can create the perception of a widespread problem. It is especially unclear how pervasive this practice is, particularly in light of actions already taken by Congress to curb these asset transfers. Repeal of section 217 would not affect several other restrictions now on the books designed to close loopholes and stop the inappropriate transfer of assets. People found to have transferred nonexempt assets within a look-back period are determined ineligible and denied Medicaid nursing home assistance for the period over which their assets would have paid. The look-back period for asset transfers is 36 months, with a 60-month period for trusts. States are also required to establish estate recovery programs to compensate for nursing home services paid for by the Medicaid Program. There is no systematic study that has determined or recommended that the addition of criminal sanctions to the penalties which already exist are necessary to address inappropriate asset transfers by the elderly. In the absence of a demonstrated need for criminal penalties, we believe that section 217 holds the potential to do more harm than good. No one really wants to send Granny to jail. In fact, it has been reported that the intended targets of section 217 are those who have created a cottage industry, and made substantial sums of money, from advising the elderly on how to transfer their assets to become Medicaid eligible. Ironically, section 217 has had the opposite effect. Recent newspaper ads placed by these advisers from Portland, ME, to Phoenix, AZ, now use this very law to drum up business. The bold-print headlines of these ads read: Sneaky New Law Buried in the Health Insurance Bill Can Put Unsuspecting Seniors and Retirees Behind Bars!, and You Only Have Until December 31st, 1996, To Avoid Making the Mistake That Could Toss You in Jail . . . Congress' Sneaky New Law Is the Most Vicious Attack on Retirees Yet! Mr. President, fraud and abuse in the Medicaid Program must not be tolerated, and taxpayers should not have to pay nursing home bills for persons who have the wherewithal to pay for their own care. But neither should confusing, unenforceable laws be in place that impose Federal criminal penalties on elderly individuals where there is no clear understanding of what does and what does not constitute a criminal activity. Organizations urging repeal of the provision include: the American Association of Retired Persons, the Alzheimer's Association, the Leadership Council on Aging--a group of more than 40 national organizations in the field of aging--and the American Bar Association. I believe that we in the Congress owe it to our senior citizens to stop their needless anxiety over this misdirected, confusing law. We need to repeal section 217. I urge my colleagues to join me in repealing this unnecessary and unworkable law. Mr. President, I ask unanimous-consent that the text of the bill be printed in the Record. [[Page S1736]] There being no objection, the bill was ordered to be printed in the Record, as follows: S. 369 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. REPEAL OF CRIMINAL PENALTY FOR FRAUDULENT DISPOSITION OF ASSETS IN ORDER TO OBTAIN MEDICAID BENEFITS. (a) Repeal.--Section 1128B(a) of the Social Security Act (42 U.S.C. 1320a-7b(a)), as amended by section 217 of the Health Insurance Portability and Accountability Act of 1996 (Public Law 104-191; 110 Stat. 2008), is amended-- (1) by adding ``or'' at the end of paragraph (4); (2) by striking ``or'' at the end of paragraph (5) and inserting a comma; and (3) by striking paragraph (6). (b) Effective Date.--The amendments made by subsection (a) take effect as if included in the enactment of the Health Insurance Portability and Accountability Act of 1996 (Public Law 104-191; 110 Stat. 1936). Mr. KENNEDY. Mr. President, I commend Senator Jeffords for his leadership on this legislation and I am honored to join him on it. Our bill repeals the criminal penalties enacted last year for disposing of assets in order to obtain Medicaid benefits. We all agree that Medicaid must be free of fraud and abuse. No one should be able to game the system by giving away their assets just to qualify for Medicaid, a program intended to help the truly needy. The criminal penalties enacted last year was a mistake and should never have been enacted. They are poorly drafted, and will have unintended consequences that penalize senior citizens unfairly. Indeed, this provision could frighten the most needy elderly away from seeking the care they need, while doing little to deter and punish those who defraud the system. No serious study has defined abusive transfers of assets as a significant problem, or recommended criminalizing an action that is already prohibited and penalized in other ways. If middle and upper income families are transferring assets to qualify for Medicaid, it should be the topic of congressional hearings and investigation, so that we can evaluate the scope of the problem and develop an appropriate response. In the meantime, seniors should not be terrorized with threats of jail merely for seeking nursing home care. The current debate over this issue reveals a much larger problem--the need for better coverage of long-term care, so that those requiring long nursing home stays don't have to sacrifice their life savings to pay for their care. There is broad bipartisan support in Congress for repeal of this provision. The White House supports repeal. Advocacy groups for the elderly support repeal. I urge Congress to act quickly on this legislation, and provide peace of mind to senior citizens across the country who feel unfairly threatened by current law. ______ By Mr. GRASSLEY (for himself, Mr. Conrad, and Mr. Hollings): S. 370. A bill to amend title XVIII of the Social Security Act to provide for increased Medicare reimbursement for nurse practitioners and clinical nurse specialists to increase the delivery of health services in health professional shortage areas, and for other purposes; to the Committee on Finance. THE PRIMARY CARE HEALTH PRACTITIONER INCENTIVE ACT OF 1997 Mr. GRASSLEY. Mr. President, today, on behalf of myself, Senator Conrad, Senator Dorgan, and Senator Hollings, I am introducing two bills. If enacted, these bills would increase access to primary care for Medicare beneficiaries in rural and inner-city communities. The Primary Care Health Practitioner Incentive Act of 1997 would reform Medicare reimbursement to nurse practitioners [NP's] and clinical nurse specialists [CNS's]. The Physician Assistant Incentive Act of 1997 would reform Medicare reimbursement for physician assistants. We introduced these bills in the last three Congresses. We are reintroducing them today to improve access to primary care services for Medicare beneficiaries, particularly in rural and underserved areas. This legislation would reform Medicare policies which, under certain circumstances, restrict reimbursement for services delivered by these providers. Similar measures are included in the President's Medicare proposal and were part of the Balanced Budget Act of 1995. The Medicare Program currently covers the services of these practitioners. However, payment levels vary depending on treatment settings and geographic area. In most cases, reimbursement may not be made directly to the nonphysician provider. Rather, it must be made to the employer of the provider, often a physician. The legislation authorizing these different reimbursement arrangements was passed in an incremental fashion over the years. The Medicare law, which authorizes reimbursement of these providers, is also inconsistent with State law in many cases. For instance, in Iowa, State law requires nonphysicians to practice with either a supervising physician or a collaborating physician. However, under Iowa law, the supervising physician need not be physically present in the same facility as the nonphysician practitioner and, in many instances, can be located in a different site from that of the nonphysician practitioner he or she is supervising. Unfortunately, Medicare policy will not recognize such relationships. Instead, the law requires that the physician be present in the same building as the nonphysician practitioner in order for the services of these nonphysician providers to be reimbursed. This is known as the incident to provision, referring to services that are provided incident to a physician's services. This has created a problem in Iowa, Mr. President. In many parts of my State, clinics have been established using nonphysician practitioners, particularly physician assistants, to provide primary health care services in communities that are unable to recruit a physician. The presence of these practitioners insures that primary health care services will be available to the community. Iowa's Medicare carrier has strictly interpreted the incident to requirement of Medicare law as requiring the physical presence of a supervising physician in places where physician assistants practice. This has caused many of the clinics using physician assistants to close, and thus has deprived the community of primary health care services. Mr. President, in 1995 the Iowa Hospital Association suggested a number of ways to improve access and cost effectiveness in the Medicare Program. One of their suggestions was that this incident to restriction be relaxed. They said: In rural Iowa, most physicians are organized in solo or small group practices. Physician assistants are used to augment these practices. With emergency room coverage requirements, absences due to vacation, continuing education or illness and office hours in satellite clinics, there are instances on a monthly basis where the physician assistant is providing care to patients without a physician in the clinic. Medicare patients in the physician clinic where the physician assistant is located have to either wait for the physician to return from the emergency room or care is provided without this provision. If enacted, this legislation would establish a more uniform payment policy for these providers. It would authorize reimbursement of their services as long as they were practicing within State law and their professional scope of practice. It calls for reimbursement of these provider groups at 85 percent of the physician fee schedule for services they provide in all treatment settings and in all geographic areas. Where it is permitted under State law, reimbursement would be authorized even if these nonphysician providers are not under the direct, physical supervision of a physician. Currently, the services of these nonphysician practitioners are paid at 100 percent of the physician's rate when provided ``incident to'' a physician's services. If enacted, this legislation would discontinue this ``incident to'' policy. Medicare reimbursement would now be provided directly to the nurse practitioners and clinical nurse specialists and it would be provided to the employer of the physician assistant. These bills also call for a 10-percent bonus payment when these practitioners work in health professional shortage areas [HPSA's]. Senator Conrad and I believe these provisions will encourage nonphysician practitioners to relocate in areas in need of health care services. Mr. President, legislation closely paralleling these bills we are introducing today is being introduced this week in the House by Representatives Nancy [[Page S1737]] Johnson and Ed Towns. In addition, these provisions are included in the President's Medicare proposal. Historically, this legislation has received bipartisan support in both Houses. Comparable legislation was included in the Balanced Budget Act of 1995, as well as several other health care measures in previous Congresses. Therefore, I urge my colleagues to support this legislation. Mr. HOLLINGS. Mr. President, I join my colleagues Senators Conrad and Grassley in introducing the Primary Care Health Practitioner Incentive Act of 1997. Today I specifically want to address the provision that would allow for direct Medicare reimbursement for services provided by nurse practitioners and clinical nurse specialists regardless of geographic location. For many years we have been trying to pass legislation that would allow these health care providers in urban settings the same direct Medicare reimbursement as those in a rural setting, and I am hopeful that this is the year it will actually be enacted. Currently, nurse practitioners and clinical nurse specialists may treat Medicare patients without a physician present if they practice in a rural setting or in a long-term care facility. I believe that it is time for this antiquated restraint to practice to be removed so that health care choices may be improved and increased for all Medicare patients. If we are to have any hope of providing adequate care with huge reductions in both Medicare and Medicaid, it is essential that service be provided by the least costly provider of quality care. We simply cannot afford to ignore the quality care of which nurse practitioners and clinical nurse specialists have proven they are capable. I would also like to point out that many times there is a discrepancy in the designation of rural and urban areas. In my home State of South Carolina, as in other States, a number of the areas listed as urban are, in reality, rural areas. Medicare patients in these areas are unable to receive home visits or utilize local community satellite offices staffed with nurse practitioners. Rather, they are required to travel miles to see a physician. As a result, many patients forgo preventive health care and wait to seek care until they become so ill that they must be hospitalized or they are forced to seek care in more expensive emergency rooms. Not only is access to physicians more limited, but their fees for services are usually higher as well. Recent figures published by the American Academy of Nurse Practitioners estimate a cost savings of greater than $54 million per year if nurse practitioners were utilized appropriately in the provision of Medicare services in ambulatory care settings. The primary objective of nurse practitioners and clinical nurse specialists is to provide routine care, manage chronic conditions, promote preventive health care, and make medical care more accessible and less expensive. Nurse practitioners and clinical nurse specialists have proven that they are able to provide high-quality, cost-effective primary care in all settings in which they provide services. It is foolish to restrict their ability to provide primary care services to the elderly based on setting or geographic location, and I urge your consideration and the passage of this bill. ______ By Mr. GRASSLEY (for himself, Mr. Conrad, and Mr. Hollings): S. 371. A bill to amend title XVIII of the Social Security Act to provide for increased medicare reimbursement for physician assistants, to increase the delivery of health services in health professional shortage areas, and for other purposes; to the Committee on Finance. THE PHYSICIAN ASSISTANT INCENTIVE ACT OF 1997 Mr. CONRAD. Mr. President, Senator Grassley and I are again introducing legislation to improve Medicare reimbursement policy for nurse practitioners, clinical nurse specialists, and physician assistants. The Primary Care Health Practitioner Incentive Act and the Physician Assistant Incentive Act of 1997 are very similar to S. 864 and S. 863, which we introduced in the 104th Congress. This legislation passed both Houses as part of reconciliation in 1995. I am very hopeful that this bipartisan legislation will garner widespread support and be signed into law as part of a Medicare reform bill this year. We believe our legislation will help all Americans by making the best possible use of primary care providers who play a vital role in our health care delivery infrastructure. Throughout the country, nurse practitioners, clinical nurse specialists and physician assistants have the skills to provide needed primary care services. This is particularly important in rural and underserved areas that have shortages of physicians. In recent years, our Nation's health care system has put a renewed emphasis on the use of primary care and wellness. Nurse practitioners, physician assistants, and clinical nurse specialists are uniquely positioned to provide this care. Nurse practitioners are registered nurses with advanced education and clinical training, often in a specialty area such as geriatrics or women's health. Nearly half of the Nation's 25,000 nurse practitioners have master's degrees. Clinical nurse specialists are required to have master's degrees and usually work in teritary care settings such as cardiac care. Many, however, also work in primary care. Physician assistants receive an average of 2 years of physician-supervised clinical training and classroom instruction and work in all setting providing diagnostic, therapeutic, and preventive care services. Each of these providers work with physicians in varying degrees usually in consultation. Within their areas of competence, these health care providers deliver care of exceptional quality. These practitioners play a vital role in communities that cannot support a physician but can afford a nurse practitioner or physician assistant; historically, these providers have been willing to move to both rural and inner-city areas that are underserved by health care providers. In fact, there are 50 communities in North Dakota that are taking advantage of the services provided by these care givers. Unfortunately, unless we make changes in our Federal reimbursement scheme, many areas of the country will not be able to benefit from these needed services. Current Medicare reimbursement rules were developed in an ad hoc fashion; as a result, they are inconsistent, incoherent, and nearly inexplicable. Current law provides reimbursement for advanced practice nurses in rural settings. But if the same patient sees the same nurse practitioner in a satellite clinic in an equally rural community that happens to be within an MSA county, reimbursement becomes subject to the ``incident to'' rule that HCFA has interpreted to require the physical presence of a physician in the building. In rural North Dakota and in rural communities throughout the country, that scenario is often inconsistent with the realities of health care delivery. Doctors in these areas often rotate between several clinics in a region that is staffed on a full-time basis by a physician assistant, nurse practitioner, or other provider. This allows physicians to cover a wider area and affords more rural residents access to basic primary care services. Current Medicare rules work against this, however. If a Medicare patient requires care when a physician is away at another clinic or out on an emergency call, the physician assistant or other provider will not be reimbursed by Medicare for the same care that would have been paid for if a physician was in the next room. Moreover, if the nurse practitioner crosses the street from a free- standing clinic to a hospital-affiliated outpatient clinic, the reimbursement rules change once again. Physician assistants are subject to an equally bewildering set of reimbursement rules that serve to prevent their effective use by the Medicare Program. Other complications also cause problems. State laws are often inconsistent with the Medicare requirements. In North Dakota, care provided by a physician assistant is reimbursed even if a physician is not present. Across the country, there also are a wide variety of payment mechanisms that result in reimbursement variations in different settings and among different providers. The Office of Technology Assessment, the Physician Payment Review Commission, and these providers themselves have all expressed the need for consistency and sensibility in a reimbursement system that acknowledges [[Page S1738]] the reality of today's medical marketplace. Our colleagues shared those sentiments in 1995 by passing this legislation in both Houses. The legislation Senator Grassley and I are introducing today will provide each of these groups with reimbursement at 85 percent of the physician fee schedule. They will also provide a bonus payment to those providers who choose to practice in areas designated as Health Professional Shortage Areas [HPSA's]. The health care access problems faced by residents of these communities could be dramatically improved through the use of this special class of primary care providers. Finally, our legislation will ensure that a nurse practitioner who cares for a patient will get paid directly for that service. This legislation offers an example how Medicare can and should increase access to care by promoting the use of cost-effective providers to a much higher degree without compromising the quality of care that older Americans receive. There was a clear agreement on these issues in the 104th Congress, and we urge our Democratic and Republican colleagues to continue to support this legislation in the 105th Congress. ______ By Mr. GRASSLEY: S. 372. A bill to amend title XVIII of the Social Security Act to provide for a 5-year reinstatement of the Medicare-dependent, small, rural hospital payment provisions, and for other purposes; to the Committee on Finance. THE MEDICARE DEPENDENT HOSPITALS PROGRAM REINSTATEMENT ACT Mr. GRASSLEY. Mr. President, I introduce a bill which would reinstate the Medicare-Dependent Hospital Program. This program expired in October 1994. As its title implied, the hospitals it helped were those which were very dependent on Medicare reimbursement. These were small--100 beds or less--rural hospitals with not less than 60 percent of total discharges or with 60 percent of total inpatient days attributable to Medicare beneficiaries. The program enabled the hospitals in question to choose the most favorable of three reimbursement methods. The program was extended, and phased out down to October 1994, in the Omnibus Budget Reconciliation Act of 1993. That act retained the choice of the three original reimbursement methods. But it reduced the reimbursement available from those original computation methods by 50 percent. My legislation would not extend the program as it was originally enacted by the Omnibus Budget Reconciliation Act of 1989. Rather, it would reinstate for 5 years the provisions contained in the Omnibus Budget Reconciliation Act of 1993. It would not have retroactive effect, however. The program would be revived for fiscal year 1998, and would terminate at the end of fiscal year 2002. As I noted above, the hospitals which would benefit from this program are small, rural hospitals providing an essential point of access to hospital and hospital-based services in rural areas and small towns. Obviously, if we lose these hospitals, we will also have a hard time keeping physicians in those communities. Mr. President, 44, or 36 percent, of Iowa's 122 community hospitals qualified to participate in this program in 1994, and 29, or 24 percent, chose to participate. I believe that this was the largest number of such hospitals of any State. For these hospitals, the percentage of all inpatient days attributable to Medicare patients was 77.4 percent in 1994, and Medicare discharges represented 65.5 percent of total discharges. Across all Iowa hospitals, the Association of Iowa Hospitals and Health Systems indicates that the Medicare share of inpatient days and discharges has increased in recent years, as non-Medicare admissions have dropped. As a result, it is likely that the program will provide a lifeline for even more Iowa hospitals now than in 1994. The expiration of the program has had a devastating effect on many of these hospitals, including a number with negative operating margins. The bottom line is that many of these hospitals have had, and will have, a very difficult time continuing to exist without the Medicare- Dependent Hospital Program. Mr. President, I am also going to continue to work for a limited service rural hospital bill. This bill will essentially extend the EACH/RPCH Program--the Essential Access Community Hospital and Rural Primary Care Hospital Program--to all the States. Taken together, these two pieces of legislation will allow the smaller hospitals in Iowa--and throughout America--to modify their missions in a deliberate and nondisruptive way, and to continue to provide the health care services essential to their communities. ______ By Mr. KENNEDY: S. 373. A bill to amend title XXVII of the Public Health Service Act and part 7 of subtitle B of title I of the Employee Retirement Income Security Act of 1974 to establish standards for protection of consumers in managed care plans and other health plans; to the Committee on Labor and Human Resources. the health insurance bill of rights act of 1997 Mr. KENNEDY. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record. There being no objection, the bill was ordered to be printed in the Record, as follows: S. 373 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE; TABLE OF CONTENTS. (a) Short Title.--This Act may be cited as the ``Health Insurance Bill of Rights Act of 1997''. (b) Table of Contents.--The table of contents of this Act is as follows: Sec. 1. Short title; table of contents. Sec. 2. Amendments to the Public Health Service Act. ``Part C--Patient Protection Standards ``Sec. 2770. Notice; additional definitions. ``Subpart 1--Access to Care ``Sec. 2771. Access to emergency care. ``Sec. 2772. Access to specialty care. ``Sec. 2773. Continuity of care. ``Sec. 2774. Choice of provider. ``Sec. 2775. Coverage for individuals participating in approved clinical trials. ``Sec. 2776. Access to needed prescription drugs. ``Subpart 2--Quality Assurance ``Sec. 2777. Internal quality assurance program. ``Sec. 2778. Collection of standardized data. ``Sec. 2779. Process for selection of providers. ``Sec. 2780. Drug utilization program. ``Sec. 2781. Standards for utilization review activities. ``Subpart 3--Patient Information ``Sec. 2782. Patient information. ``Sec. 2783. Protection of patient confidentiality. ``Subpart 4--Grievance Procedures ``Sec. 2784. Establishment of complaint and appeals process. ``Sec. 2785. Provisions relating to appeals of utilization review determinations and similar determinations. ``Sec. 2786. State health insurance ombudsmen. ``Subpart 5--Protection of Providers Against Interference with Medical Communications and Improper Incentive Arrangements ``Sec. 2787. Prohibition of interference with certain medical communications. ``Sec. 2788. Prohibition against transfer of indemnification or improper incentive arrangements. ``Subpart 6--Promoting Good Medical Practice and Protecting the Doctor- Patient Relationship ``Sec. 2789. Promoting good medical practice. Sec. 3. Amendments to the Employee Retirement Income Security Act of 1974. ``Sec. 713. Patient protection standards. SEC. 2. AMENDMENTS TO THE PUBLIC HEALTH SERVICE ACT. (a) Patient Protection Standards.--Title XXVII of the Public Health Service Act is amended-- (1) by redesignating part C as part D, and (2) by inserting after part B the following new part: ``Part C--Patient Protection Standards ``SEC. 2770. NOTICE; ADDITIONAL DEFINITIONS. ``(a) Notice.--A health insurance issuer under this part shall comply with the notice requirement under section 711(d) of the Employee Retirement Income Security Act of 1974 with respect to the requirements of this part as if such section applied to such issuer and such issuer were a group health plan. ``(b) Additional Definitions.--For purposes of this part: [[Page S1739]] ``(1) Nonparticipating physician or provider.--The term `nonparticipating physician or provider' means, with respect to health care items and services furnished to an enrollee under health insurance coverage, a physician or provider that is not a participating physician or provider for such services. ``(2) Participating physician or provider.--The term `participating physician or provider' means, with respect to health care items and services furnished to an enrollee under health insurance coverage, a physician or provider that furnishes such items and services under a contract or other arrangement with the health insurance issuer offering such coverage. ``Subpart 1--Access to Care ``SEC. 2771. ACCESS TO EMERGENCY CARE. ``(a) Prohibition of Certain Restrictions on Coverage of Emergency Services. ``(1) In general.--If health insurance coverage provides any benefits with respect to emergency services (as defined in paragraph (2)(B)), the health insurance issuer offering such coverage shall cover emergency services furnished to an enrollee-- ``(A) without the need for any prior authorization determination, ``(B) subject to paragraph (3), whether or not the physician or provider furnishing such services is a participating physician or provider with respect to such services, and ``(C) subject to paragraph (3), without regard to any other term or condition of such coverage (other than an exclusion of benefits, or an affiliation or waiting period, permitted under section 2701). ``(2) Emergency services; emergency medical condition.--For purposes of this section-- ``(A) Emergency medical condition based on prudent layperson.--The term `emergency medical condition' means a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent layperson, who possesses an average knowledge of health and medicine, could reasonably expect the absence of immediate medical attention to result in-- ``(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy, ``(ii) serious impairment to bodily functions, or ``(iii) serious dysfunction of any bodily organ or part. ``(B) Emergency services.--The term `emergency services' means-- ``(i) a medical screening examination (as required under section 1867 of the Social Security Act) that is within the capability of the emergency department of a hospital, including ancillary services routinely available to the emergency department, to evaluate an emergency medical condition (as defined in subparagraph (A)), and ``(ii) within the capabilities of the staff and facilities available at the hospital, such further medical examination and treatment as are required under section 1867 of the Social Security Act to stabilize the patient. ``(C) Trauma and burn centers.--The provisions of clause (ii) of subparagraph (B) apply to a trauma or burn center, in a hospital, that-- ``(i) is designated by the State, a regional authority of the State, or by the designee of the State, or ``(ii) is in a State that has not made such designations and meets medically recognized national standards. ``(3) Application of network restriction permitted in certain cases.-- ``(A) In general.--Except as provided in subparagraph (B), if a health insurance issuer in relation to health insurance coverage denies, limits, or otherwise differentiates in coverage or payment for benefits other than emergency services on the basis that the physician or provider of such services is a nonparticipating physician or provider, the issuer may deny, limit, or differentiate in coverage or payment for emergency services on such basis. ``(B) Network restrictions not permitted in certain exceptional cases.--The denial or limitation of, or differentiation in, coverage or payment of benefits for emergency services under subparagraph (A) shall not apply in the following cases: ``(i) Circumstances beyond control of enrollee.--The enrollee is unable to go to a participating hospital for such services due to circumstances beyond the control of the enrollee (as determined consistent with guidelines and subparagraph (C)). ``(ii) Likelihood of an adverse health consequence based on layperson's judgment.--A prudent layperson possessing an average knowledge of health and medicine could reasonably believe that, under the circumstances and consistent with guidelines, the time required to go to a participating hospital for such services could result in any of the adverse health consequences described in a clause of subsection (a)(2)(A). ``(iii) Physician referral.--A participating physician or other person authorized by the plan refers the enrollee to an emergency department of a hospital and does not specify an emergency department of a hospital that is a participating hospital with respect to such services. ``(C) Application of `beyond control' standards.--For purposes of applying subparagraph (B)(i), receipt of emergency services from a nonparticipating hospital shall be treated under the guidelines as being `due to circumstances beyond the control of the enrollee' if any of the following conditions are met: ``(i) Unconscious.--The enrollee was unconscious or in an otherwise altered mental state at the time of initiation of the services. ``(ii) Ambulance delivery.--The enrollee was transported by an ambulance or other emergency vehicle directed by a person other than the enrollee to the nonparticipating hospital in which the services were provided. ``(iii) Natural disaster.--A natural disaster or civil disturbance prevented the enrollee from presenting to a participating hospital for the provision of such services. ``(iv) No good faith effort to inform of change in participation during a contract year.--The status of the hospital changed from a participating hospital to a nonparticipating hospital with respect to emergency services during a contract year and the plan or issuer failed to make a good faith effort to notify the enrollee involved of such change. ``(v) Other conditions.--There were other factors (such as those identified in guidelines) that prevented the enrollee from controlling selection of the hospital in which the services were provided. ``(b) Assuring Coordinated Coverage of Maintenance Care and Post-Stabilization Care.-- ``(1) In general.--In the case of an enrollee who is covered under health insurance coverage issued by a health insurance issuer and who has received emergency services pursuant to a screening evaluation conducted (or supervised) by a treating physician at a hospital that is a nonparticipating provider with respect to emergency services, if-- ``(A) pursuant to such evaluation, the physician identifies post-stabilization care (as defined in paragraph (3)(B)) that is required by the enrollee, ``(B) the coverage provides benefits with respect to the care so identified and the coverage requires (but for this subsection) an affirmative prior authorization determination as a condition of coverage of such care, and ``(C) the treating physician (or another individual acting on behalf of such physician) initiates, not later than 30 minutes after the time the treating physician determines that the condition of the enrollee is stabilized, a good faith effort to contact a physician or other person authorized by the issuer (by telephone or other means) to obtain an affirmative prior authorization determination with respect to the care, then, without regard to terms and conditions specified in paragraph (2) the issuer shall cover maintenance care (as defined in paragraph (3)(A)) furnished to the enrollee during the period specified in paragraph (4) and shall cover post- stabilization care furnished to the enrollee during the period beginning under paragraph (5) and ending under paragraph (6). ``(2) Terms and conditions waived.--The terms and conditions (of coverage) described in this paragraph that are waived under paragraph (1) are as follows: ``(A) The need for any prior authorization determination. ``(B) Any limitation on coverage based on whether or not the physician or provider furnishing the care is a participating physician or provider with respect to such care. ``(C) Any other term or condition of the coverage (other than an exclusion of benefits, or an affiliation or waiting period, permitted under section 2701 and other than a requirement relating to medical necessity for coverage of benefits). ``(3) Maintenance care and post-stabilization care defined.--In this subsection: ``(A) Maintenance care.--The term `maintenance care' means, with respect to an individual who is stabilized after provision of emergency services, medically necessary items and services (other than emergency services) that are required by the individual to ensure that the individual remains stabilized during the period described in paragraph (4). ``(B) Post-stabilization care.--The term `post- stabilization care' means, with respect to an individual who is determined to be stable pursuant to a medical screening examination or who is stabilized after provision of emergency services, medically necessary items and services (other than emergency services and other than maintenance care) that are required by the individual. ``(4) Period of required coverage of maintenance care.--The period of required coverage of maintenance care of an individual under this subsection begins at the time of the request (or the initiation of the good faith effort to make the request) under paragraph (1)(C) and ends when-- ``(A) the individual is discharged from the hospital; ``(B) a physician (designated by the issuer involved) and with privileges at the hospital involved arrives at the emergency department of the hospital and assumes responsibility with respect to the treatment of the individual; or ``(C) the treating physician and the issuer agree to another arrangement with respect to the care of the individual. ``(5) When post-stabilization care required to be covered.-- ``(A) When treating physician unable to communicate request.--If the treating physician or other individual makes the good faith effort to request authorization under [[Page S1740]] paragraph (1)(C) but is unable to communicate the request directly with an authorized person referred to in such paragraph within 30 minutes after the time of initiating such effort, then post-stabilization care is required to be covered under this subsection beginning at the end of such 30-minute period. ``(B) When able to communicate request, and no timely response.-- ``(i) In general.--If the treating physician or other individual under paragraph (1)(C) is able to communicate the request within the 30-minute period described in subparagraph (A), the post-stabilization care requested is required to be covered under this subsection beginning 30 minutes after the time when the issuer receives the request unless a person authorized by the plan or issuer involved communicates (or makes a good faith effort to communicate) a denial of the request for the prior authorization determination within 30 minutes of the time when the issuer receives the request and the treating physician does not request under clause (ii) to communicate directly with an authorized physician concerning the denial. ``(ii) Request for direct physician-to-physician communication concerning denial.--If a denial of a request is communicated under clause (i), the treating physician may request to communicate respecting the denial directly with a physician who is authorized by the issuer to deny or affirm such a denial. ``(C) When no timely response to request for physician-to- physician communication.--If a request for physician-to- physician communication is made under subparagraph (B)(ii), the post-stabilization care requested is required to be covered under this subsection beginning 30 minutes after the time when the issuer receives the request from a treating physician unless a physician, who is authorized by the issuer to reverse or affirm the initial denial of the care, communicates (or makes a good faith effort to communicate) directly with the treating physician within such 30-minute period. ``(D) Disagreements over post-stabilization care.--If, after a direct physician-to-physician communication under subparagraph (C), the denial of the request for the post- stabilization care is not reversed and the treating physician communicates to the issuer involved a disagreement with such decision, the post-stabilization care requested is required to be covered under this subsection beginning as follows: ``(i) Delay to allow for prompt arrival of physician assuming responsibility.--If the issuer communicates that a physician (designated by the plan or issuer) with privileges at the hospital involved will arrive promptly (as determined under guidelines) at the emergency department of the hospital in order to assume responsibility with respect to the treatment of the enrollee involved, the required coverage of the post-stabilization care begins after the passage of such time period as would allow the prompt arrival of such a physician. ``(ii) Other cases.--If the issuer does not so communicate, the required coverage of the post-stabilization care begins immediately. ``(6) No requirement of coverage of post-stabilization care if alternate plan of treatment.-- ``(A) In general.--Coverage of post-stabilization care is not required under this subsection with respect to an individual when-- ``(i) subject to subparagraph (B), a physician (designated by the plan or issuer involved) and with privileges at the hospital involved arrives at the emergency department of the hospital and assumes responsibility with respect to the treatment of the individual; or ``(ii) the treating physician and the issuer agree to another arrangement with respect to the post-stabilization care (such as an appropriate transfer of the individual involved to another facility or an appointment for timely followup treatment for the individual). ``(B) Special rule where once care initiated.--Required coverage of requested post-stabilization care shall not end by reason of subparagraph (A)(i) during an episode of care (as determined by guidelines) if the treating physician initiated such care (consistent with a previous paragraph) before the arrival of a physician described in such subparagraph. ``(7) Construction.--Nothing in this subsection shall be construed as-- ``(A) preventing an issuer from authorizing coverage of maintenance care or post-stabilization care in advance or at any time; or ``(B) preventing a treating physician or other individual described in paragraph (1)(C) and an issuer from agreeing to modify any of the time periods specified in paragraphs (5) as it relates to cases involving such persons. ``(c) Limits on Cost-Sharing for Services Furnished in Emergency Departments.--If health insurance coverage provides any benefits with respect to emergency services, the health insurance issuer offering such coverage may impose cost sharing with respect to such services only if the following conditions are met: ``(1) Limitations on cost-sharing differential for nonparticipating providers.-- ``(A) No differential for certain services.--In the case of services furnished under the circumstances described in clause (i), (ii), or (iii) of subsection (a)(3)(B) (relating to circumstances beyond the control of the enrollee, the likelihood of an adverse health consequence based on layperson's judgment, and physician referral), the cost- sharing for such services provided by a nonparticipating provider or physician does not exceed the cost-sharing for such services provided by a participating provider or physician. ``(B) Only reasonable differential for other services.--In the case of other emergency services, any differential by which the cost-sharing for such services provided by a nonparticipating provider or physician exceeds the cost- sharing for such services provided by a participating provider or physician is reasonable (as determined under guidelines). ``(2) Only reasonable differential between emergency services and other services.--Any differential by which the cost-sharing for services furnished in an emergency department exceeds the cost-sharing for such services furnished in another setting is reasonable (as determined under guidelines). ``(3) Construction.--Nothing in paragraph (1)(B) or (2) shall be construed as authorizing guidelines other than guidelines that establish maximum cost-sharing differentials. ``(d) Information on Access to Emergency Services.--A health insurance issuer, to the extent a health insurance issuer offers health insurance coverage, shall provide education to enrollees on-- ``(1) coverage of emergency services (as defined in subsection (a)(2)(B)) by the issuer in accordance with the provisions of this section, ``(2) the appropriate use of emergency services, including use of the 911 telephone system or its local equivalent, ``(3) any cost sharing applicable to emergency services, ``(4) the process and procedures of the plan for obtaining emergency services, and ``(5) the locations of-- ``(A) emergency departments, and ``(B) other settings, in which participating physicians and hospitals provide emergency services and post-stabilization care. ``(e) General Definitions.--For purposes of this section: ``(1) Cost sharing.--The term `cost sharing' means any deductible, coinsurance amount, copayment or other out-of- pocket payment (other than premiums or enrollment fees) that a health insurance issuer offering health insurance issuer imposes on enrollees with respect to the coverage of benefits. ``(2) Good faith effort.--The term `good faith effort' has the meaning given such term in guidelines and requires such appropriate documentation as is specified under such guidelines. ``(3) Guidelines.--The term `guidelines' means guidelines established by the Secretary after consultation with an advisory panel that includes individuals representing emergency physicians, health insurance issuers, including at least one health maintenance organization, hospitals, employers, the States, and consumers. ``(4) Prior authorization determination.--The term `prior authorization determination' means, with respect to items and services for which coverage may be provided under health insurance coverage, a determination (before the provision of the items and services and as a condition of coverage of the items and services under the coverage) of whether or not such items and services will be covered under the coverage. ``(5) Stabilize.--The term `to stabilize' means, with respect to an emergency medical condition, to provide (in complying with section 1867 of the Social Security Act) such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from the facility. ``(6) Stabilized.--The term `stabilized' means, with respect to an emergency medical condition, that no material deterioration of the condition is likely, within reasonable medical probability, to result from or occur before an individual can be transferred from the facility, in compliance with the requirements of section 1867 of the Social Security Act. ``(7) Treating physician.--The term `treating physician' includes a treating health care professional who is licensed under State law to provide emergency services other than under the supervision of a physician. ``SEC. 2772. ACCESS TO SPECIALTY CARE. ``(a) Obstetrical and Gynecological Care.-- ``(1) In general.--If a health insurance issuer, in connection with the provision of health insurance coverage, requires or provides for an enrollee to designate a participating primary care provider-- ``(A) the issuer shall permit a female enrollee to designate a physician who specializes in obstetrics and gynecology as the enrollee's primary care provider; and ``(B) if such an enrollee has not designated such a provider as a primary care provider, the issuer-- ``(i) may not require prior authorization by the enrollee's primary care provider or otherwise for coverage of routine gynecological care (such as preventive women's health examinations) and pregnancy-related services provided by a participating physician who specializes in obstetrics and gynecology to [[Page S1741]] the extent such care is otherwise covered, and ``(ii) may treat the ordering of other gynecological care by such a participating physician as the prior authorization of the primary care provider with respect to such care under the coverage. ``(2) Construction.--Nothing in paragraph (1)(B)(ii) shall waive any requirements of coverage relating to medical necessity or appropriateness with respect to coverage of gynecological care so ordered. ``(b) Specialty Care.-- ``(1) Referral to specialty care for enrollees requiring treatment by specialists.-- ``(A) In general.--In the case of an enrollee who is covered under health insurance coverage offered by a health insurance issuer and who has a condition or disease of sufficient seriousness and complexity to require treatment by a specialist, the issuer shall make or provide for a referral to a specialist who is available and accessible to provide the treatment for such condition or disease. ``(B) Specialist defined.--For purposes of this subsection, the term `specialist' means, with respect to a condition, a health care practitioner, facility, or center (such as a center of excellence) that has adequate expertise through appropriate training and experience (including, in the case of a child, appropriate pediatric expertise) to provide high quality care in treating the condition. ``(C) Care under referral.--Care provided pursuant to such referral under subparagraph (A) shall be-- ``(i) pursuant to a treatment plan (if any) developed by the specialist and approved by the issuer, in consultation with the designated primary care provider or specialist and the enrollee (or the enrollee's designee), and ``(ii) in accordance with applicable quality assurance and utilization review standards of the issuer. Nothing in this subsection shall be construed as preventing such a treatment plan for an enrollee from requiring a specialist to provide the primary care provider with regular updates on the specialty care provided, as well as all necessary medical information. ``(D) Referrals to participating providers.--An issuer is not required under subparagraph (A) to provide for a referral to a specialist that is not a participating provider, unless the issuer does not have an appropriate specialist that is available and accessible to treat the enrollee's condition and that is a participating provider with respect to such treatment. ``(E) Treatment of nonparticipating providers.--If an issuer refers an enrollee to a nonparticipating specialist, services provided pursuant to the approved treatment plan shall be provided at no additional cost to the enrollee beyond what the enrollee would otherwise pay for

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STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
(Senate - February 27, 1997)

Text of this article available as: TXT PDF [Pages S1734-S1762] STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS By Mr. BOND (for himself and Mr. Ashcroft): S. 368. A bill to prohibit the use of Federal funds for human cloning research; to the Committee on Labor and Human Resources. RESEARCH LEGISLATION Mr. BOND. Mr. President, today I rise to introduce a measure on behalf of myself, Senator Ashcroft, and Senator Byrd which would prohibit permanently the use of Federal funds for human cloning research. I am sure most Americans by now have heard about the successful cloning of Dolly, the sheep, by Scottish scientists. Many people are now asking can similar techniques be used to clone a human being? Something that was once thought to be only science fiction is now close to being a reality. With the legislation I introduce today, I intend to make sure that human cloning stays within the realm of science fiction and does not become a reality. The bill that I am introducing with my colleagues today will place a permanent ban on Federal funding for human cloning or human cloning research. We must send a clear signal: Human cloning is something we cannot and should not tolerate. This type of research on humans is morally reprehensible. We should not be creating human beings for spare parts or as replacements. Moreover, a National Institutes of Health human embryo panel noted, ``allowing society to create genetically identical persons would devalue human life by undermining the individuality of human beings.'' In a September 1994 report of the Human Embryo Research Panel, the heading is, ``Research Considered Unacceptable for Federal Funding.'' It said: [[Page S1735]] Four ethical considerations entered into the deliberations of the panel as it determined what types of research were unacceptable for Federal funding: The potential adverse consequences of the research for children, women and men; the respect due the reimplantation embryo; concern for public sensitivities in highly controversial research proposals, and concern for the meaning of humanness, parenthood, and the successions of generations. The President has said we should study the issue. President Clinton has asked a Federal bioethicist board to consider the implications of this research and report back to him within 90 days. I do not think we need to study this. I think we can save the board some effort because the President's own administration has concluded that human cloning was ``research considered unacceptable for Federal funding.'' There are some aspects of life which simply ought to be off limits to science. I think it will be helpful to go through some of the ethical considerations the board looked at. First, they asked: Is it ethical to create genetically identical individuals who can be born at different times? Is it ethical to store a frozen human embryo that is genetically identical to a born child in order to serve as a later source for organ and tissue transplantation; thus treating humans as spare parts? Is it ethical to create a genetically identical child as a replacement in case the first child dies? Again, these are just a sample of the ethical questions the issue poses. The board concluded the analysis by stating: There are broad moral concerns about the deliberate duplication of an individual genome. The notion of cloning an existing human being or of making ``carbon copies'' of an existing embryo appears repugnant to members of the public. Many Members of the panel share this view and see no justification for Federal funding of such research. I also should point out an important distinction with this bill. It is narrowly drafted so that it only affects human cloning research. It does not address the issue of plant and animal cloning research, and it will also allow--and I personally strongly support--NIH to continue its human genome mapping project. I have long been a supporter of biotechnology, genome mapping and manipulation, and even plant and animal cloning. But we can draw a clear line here. For plants and animals, it makes sense to clone your specimens to improve human health and human well-being. But when we are talking about creating an entire human being, identical to another, we are talking about playing God, and that is where we must draw the line. I note, the Vatican and leading ethicists throughout the country have called for a ban on human cloning and human cloning research. I ask unanimous consent that the names of those ethicists and scientists be printed in the Record. There being no objection, the material was ordered to be printed in the Record, as follows: Dr. Ted Cicero, Vice Chancellor for Research at Washington University in St. Louis, Missouri. Dr. Kevin Fitzgerald, a Jesuit priest and a geneticist at Loyola University in Illinois. Arthur Caplan, head of the Center for Bioethics at the University of Pennsylvania. Dr. Harmon Smith, Professor of Moral Theology at Duke University. ______ By Mr. JEFFORDS (for himself, Mr. Kennedy, Mr. Chafee, Ms. Mikulski, Ms. Collins, Mrs. Murray, Mr. Dodd, Mr. Hollings, Mr. Glenn and Mr. Reed): S. 369. A bill to amend section 1128B of the Social Security Act to repeal the criminal penalty for fraudulent disposition of assets in order to obtain medicaid benefits added by section 217 of the Health Insurance Portability and Accountability Act of 1996; to the Committee on Finance. HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AMENDMENTS Mr. JEFFORDS. Mr. President, I am on the floor today to introduce legislation that will repeal section 217 of the Health Insurance Portability and Accountability Act [HIPAA]. As enacted last year, this provision for the first time creates Federal criminal penalties for elders who transfer their assets and who subsequently apply for Medicaid but are deemed ineligible for nursing home benefits. I believe the goal to stop fraud and abuse in the Medicaid Program is laudable and must be pursued. However, there is a growing consensus that section 217 is a vague, unenforceable, criminal sanction misdirected at the elderly. It is unduly threatening to the Nation's senior citizens. We are sending the wrong message by implying there is something wrong or illegal with obtaining sound financial advice and estate planning to legitimately protect the assets that senior citizens have spent a lifetime accruing. During a recent hearing before the Committee on Labor and Human Resources, on the implementation of HIPAA, several concerns were raised about this issue. Ms. Gail Shearer, the director of health policy analysis of the Consumers Union, testified that section 217 was ``leading to considerable alarm among seniors'' and that she was ``deeply troubled by the prospect of HIPAA leading to the transfer of elderly nursing home residents from their nursing home to prison.'' At that same hearing, Mr. Bruce Vladek, the administrator of the Health Care Financing Administration, pointed out that there is no evidence that large numbers of the elderly are impoverishing themselves to become Medicaid eligible. He expressed his belief that a few people doing something egregious can create the perception of a widespread problem. It is especially unclear how pervasive this practice is, particularly in light of actions already taken by Congress to curb these asset transfers. Repeal of section 217 would not affect several other restrictions now on the books designed to close loopholes and stop the inappropriate transfer of assets. People found to have transferred nonexempt assets within a look-back period are determined ineligible and denied Medicaid nursing home assistance for the period over which their assets would have paid. The look-back period for asset transfers is 36 months, with a 60-month period for trusts. States are also required to establish estate recovery programs to compensate for nursing home services paid for by the Medicaid Program. There is no systematic study that has determined or recommended that the addition of criminal sanctions to the penalties which already exist are necessary to address inappropriate asset transfers by the elderly. In the absence of a demonstrated need for criminal penalties, we believe that section 217 holds the potential to do more harm than good. No one really wants to send Granny to jail. In fact, it has been reported that the intended targets of section 217 are those who have created a cottage industry, and made substantial sums of money, from advising the elderly on how to transfer their assets to become Medicaid eligible. Ironically, section 217 has had the opposite effect. Recent newspaper ads placed by these advisers from Portland, ME, to Phoenix, AZ, now use this very law to drum up business. The bold-print headlines of these ads read: Sneaky New Law Buried in the Health Insurance Bill Can Put Unsuspecting Seniors and Retirees Behind Bars!, and You Only Have Until December 31st, 1996, To Avoid Making the Mistake That Could Toss You in Jail . . . Congress' Sneaky New Law Is the Most Vicious Attack on Retirees Yet! Mr. President, fraud and abuse in the Medicaid Program must not be tolerated, and taxpayers should not have to pay nursing home bills for persons who have the wherewithal to pay for their own care. But neither should confusing, unenforceable laws be in place that impose Federal criminal penalties on elderly individuals where there is no clear understanding of what does and what does not constitute a criminal activity. Organizations urging repeal of the provision include: the American Association of Retired Persons, the Alzheimer's Association, the Leadership Council on Aging--a group of more than 40 national organizations in the field of aging--and the American Bar Association. I believe that we in the Congress owe it to our senior citizens to stop their needless anxiety over this misdirected, confusing law. We need to repeal section 217. I urge my colleagues to join me in repealing this unnecessary and unworkable law. Mr. President, I ask unanimous-consent that the text of the bill be printed in the Record. [[Page S1736]] There being no objection, the bill was ordered to be printed in the Record, as follows: S. 369 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. REPEAL OF CRIMINAL PENALTY FOR FRAUDULENT DISPOSITION OF ASSETS IN ORDER TO OBTAIN MEDICAID BENEFITS. (a) Repeal.--Section 1128B(a) of the Social Security Act (42 U.S.C. 1320a-7b(a)), as amended by section 217 of the Health Insurance Portability and Accountability Act of 1996 (Public Law 104-191; 110 Stat. 2008), is amended-- (1) by adding ``or'' at the end of paragraph (4); (2) by striking ``or'' at the end of paragraph (5) and inserting a comma; and (3) by striking paragraph (6). (b) Effective Date.--The amendments made by subsection (a) take effect as if included in the enactment of the Health Insurance Portability and Accountability Act of 1996 (Public Law 104-191; 110 Stat. 1936). Mr. KENNEDY. Mr. President, I commend Senator Jeffords for his leadership on this legislation and I am honored to join him on it. Our bill repeals the criminal penalties enacted last year for disposing of assets in order to obtain Medicaid benefits. We all agree that Medicaid must be free of fraud and abuse. No one should be able to game the system by giving away their assets just to qualify for Medicaid, a program intended to help the truly needy. The criminal penalties enacted last year was a mistake and should never have been enacted. They are poorly drafted, and will have unintended consequences that penalize senior citizens unfairly. Indeed, this provision could frighten the most needy elderly away from seeking the care they need, while doing little to deter and punish those who defraud the system. No serious study has defined abusive transfers of assets as a significant problem, or recommended criminalizing an action that is already prohibited and penalized in other ways. If middle and upper income families are transferring assets to qualify for Medicaid, it should be the topic of congressional hearings and investigation, so that we can evaluate the scope of the problem and develop an appropriate response. In the meantime, seniors should not be terrorized with threats of jail merely for seeking nursing home care. The current debate over this issue reveals a much larger problem--the need for better coverage of long-term care, so that those requiring long nursing home stays don't have to sacrifice their life savings to pay for their care. There is broad bipartisan support in Congress for repeal of this provision. The White House supports repeal. Advocacy groups for the elderly support repeal. I urge Congress to act quickly on this legislation, and provide peace of mind to senior citizens across the country who feel unfairly threatened by current law. ______ By Mr. GRASSLEY (for himself, Mr. Conrad, and Mr. Hollings): S. 370. A bill to amend title XVIII of the Social Security Act to provide for increased Medicare reimbursement for nurse practitioners and clinical nurse specialists to increase the delivery of health services in health professional shortage areas, and for other purposes; to the Committee on Finance. THE PRIMARY CARE HEALTH PRACTITIONER INCENTIVE ACT OF 1997 Mr. GRASSLEY. Mr. President, today, on behalf of myself, Senator Conrad, Senator Dorgan, and Senator Hollings, I am introducing two bills. If enacted, these bills would increase access to primary care for Medicare beneficiaries in rural and inner-city communities. The Primary Care Health Practitioner Incentive Act of 1997 would reform Medicare reimbursement to nurse practitioners [NP's] and clinical nurse specialists [CNS's]. The Physician Assistant Incentive Act of 1997 would reform Medicare reimbursement for physician assistants. We introduced these bills in the last three Congresses. We are reintroducing them today to improve access to primary care services for Medicare beneficiaries, particularly in rural and underserved areas. This legislation would reform Medicare policies which, under certain circumstances, restrict reimbursement for services delivered by these providers. Similar measures are included in the President's Medicare proposal and were part of the Balanced Budget Act of 1995. The Medicare Program currently covers the services of these practitioners. However, payment levels vary depending on treatment settings and geographic area. In most cases, reimbursement may not be made directly to the nonphysician provider. Rather, it must be made to the employer of the provider, often a physician. The legislation authorizing these different reimbursement arrangements was passed in an incremental fashion over the years. The Medicare law, which authorizes reimbursement of these providers, is also inconsistent with State law in many cases. For instance, in Iowa, State law requires nonphysicians to practice with either a supervising physician or a collaborating physician. However, under Iowa law, the supervising physician need not be physically present in the same facility as the nonphysician practitioner and, in many instances, can be located in a different site from that of the nonphysician practitioner he or she is supervising. Unfortunately, Medicare policy will not recognize such relationships. Instead, the law requires that the physician be present in the same building as the nonphysician practitioner in order for the services of these nonphysician providers to be reimbursed. This is known as the incident to provision, referring to services that are provided incident to a physician's services. This has created a problem in Iowa, Mr. President. In many parts of my State, clinics have been established using nonphysician practitioners, particularly physician assistants, to provide primary health care services in communities that are unable to recruit a physician. The presence of these practitioners insures that primary health care services will be available to the community. Iowa's Medicare carrier has strictly interpreted the incident to requirement of Medicare law as requiring the physical presence of a supervising physician in places where physician assistants practice. This has caused many of the clinics using physician assistants to close, and thus has deprived the community of primary health care services. Mr. President, in 1995 the Iowa Hospital Association suggested a number of ways to improve access and cost effectiveness in the Medicare Program. One of their suggestions was that this incident to restriction be relaxed. They said: In rural Iowa, most physicians are organized in solo or small group practices. Physician assistants are used to augment these practices. With emergency room coverage requirements, absences due to vacation, continuing education or illness and office hours in satellite clinics, there are instances on a monthly basis where the physician assistant is providing care to patients without a physician in the clinic. Medicare patients in the physician clinic where the physician assistant is located have to either wait for the physician to return from the emergency room or care is provided without this provision. If enacted, this legislation would establish a more uniform payment policy for these providers. It would authorize reimbursement of their services as long as they were practicing within State law and their professional scope of practice. It calls for reimbursement of these provider groups at 85 percent of the physician fee schedule for services they provide in all treatment settings and in all geographic areas. Where it is permitted under State law, reimbursement would be authorized even if these nonphysician providers are not under the direct, physical supervision of a physician. Currently, the services of these nonphysician practitioners are paid at 100 percent of the physician's rate when provided ``incident to'' a physician's services. If enacted, this legislation would discontinue this ``incident to'' policy. Medicare reimbursement would now be provided directly to the nurse practitioners and clinical nurse specialists and it would be provided to the employer of the physician assistant. These bills also call for a 10-percent bonus payment when these practitioners work in health professional shortage areas [HPSA's]. Senator Conrad and I believe these provisions will encourage nonphysician practitioners to relocate in areas in need of health care services. Mr. President, legislation closely paralleling these bills we are introducing today is being introduced this week in the House by Representatives Nancy [[Page S1737]] Johnson and Ed Towns. In addition, these provisions are included in the President's Medicare proposal. Historically, this legislation has received bipartisan support in both Houses. Comparable legislation was included in the Balanced Budget Act of 1995, as well as several other health care measures in previous Congresses. Therefore, I urge my colleagues to support this legislation. Mr. HOLLINGS. Mr. President, I join my colleagues Senators Conrad and Grassley in introducing the Primary Care Health Practitioner Incentive Act of 1997. Today I specifically want to address the provision that would allow for direct Medicare reimbursement for services provided by nurse practitioners and clinical nurse specialists regardless of geographic location. For many years we have been trying to pass legislation that would allow these health care providers in urban settings the same direct Medicare reimbursement as those in a rural setting, and I am hopeful that this is the year it will actually be enacted. Currently, nurse practitioners and clinical nurse specialists may treat Medicare patients without a physician present if they practice in a rural setting or in a long-term care facility. I believe that it is time for this antiquated restraint to practice to be removed so that health care choices may be improved and increased for all Medicare patients. If we are to have any hope of providing adequate care with huge reductions in both Medicare and Medicaid, it is essential that service be provided by the least costly provider of quality care. We simply cannot afford to ignore the quality care of which nurse practitioners and clinical nurse specialists have proven they are capable. I would also like to point out that many times there is a discrepancy in the designation of rural and urban areas. In my home State of South Carolina, as in other States, a number of the areas listed as urban are, in reality, rural areas. Medicare patients in these areas are unable to receive home visits or utilize local community satellite offices staffed with nurse practitioners. Rather, they are required to travel miles to see a physician. As a result, many patients forgo preventive health care and wait to seek care until they become so ill that they must be hospitalized or they are forced to seek care in more expensive emergency rooms. Not only is access to physicians more limited, but their fees for services are usually higher as well. Recent figures published by the American Academy of Nurse Practitioners estimate a cost savings of greater than $54 million per year if nurse practitioners were utilized appropriately in the provision of Medicare services in ambulatory care settings. The primary objective of nurse practitioners and clinical nurse specialists is to provide routine care, manage chronic conditions, promote preventive health care, and make medical care more accessible and less expensive. Nurse practitioners and clinical nurse specialists have proven that they are able to provide high-quality, cost-effective primary care in all settings in which they provide services. It is foolish to restrict their ability to provide primary care services to the elderly based on setting or geographic location, and I urge your consideration and the passage of this bill. ______ By Mr. GRASSLEY (for himself, Mr. Conrad, and Mr. Hollings): S. 371. A bill to amend title XVIII of the Social Security Act to provide for increased medicare reimbursement for physician assistants, to increase the delivery of health services in health professional shortage areas, and for other purposes; to the Committee on Finance. THE PHYSICIAN ASSISTANT INCENTIVE ACT OF 1997 Mr. CONRAD. Mr. President, Senator Grassley and I are again introducing legislation to improve Medicare reimbursement policy for nurse practitioners, clinical nurse specialists, and physician assistants. The Primary Care Health Practitioner Incentive Act and the Physician Assistant Incentive Act of 1997 are very similar to S. 864 and S. 863, which we introduced in the 104th Congress. This legislation passed both Houses as part of reconciliation in 1995. I am very hopeful that this bipartisan legislation will garner widespread support and be signed into law as part of a Medicare reform bill this year. We believe our legislation will help all Americans by making the best possible use of primary care providers who play a vital role in our health care delivery infrastructure. Throughout the country, nurse practitioners, clinical nurse specialists and physician assistants have the skills to provide needed primary care services. This is particularly important in rural and underserved areas that have shortages of physicians. In recent years, our Nation's health care system has put a renewed emphasis on the use of primary care and wellness. Nurse practitioners, physician assistants, and clinical nurse specialists are uniquely positioned to provide this care. Nurse practitioners are registered nurses with advanced education and clinical training, often in a specialty area such as geriatrics or women's health. Nearly half of the Nation's 25,000 nurse practitioners have master's degrees. Clinical nurse specialists are required to have master's degrees and usually work in teritary care settings such as cardiac care. Many, however, also work in primary care. Physician assistants receive an average of 2 years of physician-supervised clinical training and classroom instruction and work in all setting providing diagnostic, therapeutic, and preventive care services. Each of these providers work with physicians in varying degrees usually in consultation. Within their areas of competence, these health care providers deliver care of exceptional quality. These practitioners play a vital role in communities that cannot support a physician but can afford a nurse practitioner or physician assistant; historically, these providers have been willing to move to both rural and inner-city areas that are underserved by health care providers. In fact, there are 50 communities in North Dakota that are taking advantage of the services provided by these care givers. Unfortunately, unless we make changes in our Federal reimbursement scheme, many areas of the country will not be able to benefit from these needed services. Current Medicare reimbursement rules were developed in an ad hoc fashion; as a result, they are inconsistent, incoherent, and nearly inexplicable. Current law provides reimbursement for advanced practice nurses in rural settings. But if the same patient sees the same nurse practitioner in a satellite clinic in an equally rural community that happens to be within an MSA county, reimbursement becomes subject to the ``incident to'' rule that HCFA has interpreted to require the physical presence of a physician in the building. In rural North Dakota and in rural communities throughout the country, that scenario is often inconsistent with the realities of health care delivery. Doctors in these areas often rotate between several clinics in a region that is staffed on a full-time basis by a physician assistant, nurse practitioner, or other provider. This allows physicians to cover a wider area and affords more rural residents access to basic primary care services. Current Medicare rules work against this, however. If a Medicare patient requires care when a physician is away at another clinic or out on an emergency call, the physician assistant or other provider will not be reimbursed by Medicare for the same care that would have been paid for if a physician was in the next room. Moreover, if the nurse practitioner crosses the street from a free- standing clinic to a hospital-affiliated outpatient clinic, the reimbursement rules change once again. Physician assistants are subject to an equally bewildering set of reimbursement rules that serve to prevent their effective use by the Medicare Program. Other complications also cause problems. State laws are often inconsistent with the Medicare requirements. In North Dakota, care provided by a physician assistant is reimbursed even if a physician is not present. Across the country, there also are a wide variety of payment mechanisms that result in reimbursement variations in different settings and among different providers. The Office of Technology Assessment, the Physician Payment Review Commission, and these providers themselves have all expressed the need for consistency and sensibility in a reimbursement system that acknowledges [[Page S1738]] the reality of today's medical marketplace. Our colleagues shared those sentiments in 1995 by passing this legislation in both Houses. The legislation Senator Grassley and I are introducing today will provide each of these groups with reimbursement at 85 percent of the physician fee schedule. They will also provide a bonus payment to those providers who choose to practice in areas designated as Health Professional Shortage Areas [HPSA's]. The health care access problems faced by residents of these communities could be dramatically improved through the use of this special class of primary care providers. Finally, our legislation will ensure that a nurse practitioner who cares for a patient will get paid directly for that service. This legislation offers an example how Medicare can and should increase access to care by promoting the use of cost-effective providers to a much higher degree without compromising the quality of care that older Americans receive. There was a clear agreement on these issues in the 104th Congress, and we urge our Democratic and Republican colleagues to continue to support this legislation in the 105th Congress. ______ By Mr. GRASSLEY: S. 372. A bill to amend title XVIII of the Social Security Act to provide for a 5-year reinstatement of the Medicare-dependent, small, rural hospital payment provisions, and for other purposes; to the Committee on Finance. THE MEDICARE DEPENDENT HOSPITALS PROGRAM REINSTATEMENT ACT Mr. GRASSLEY. Mr. President, I introduce a bill which would reinstate the Medicare-Dependent Hospital Program. This program expired in October 1994. As its title implied, the hospitals it helped were those which were very dependent on Medicare reimbursement. These were small--100 beds or less--rural hospitals with not less than 60 percent of total discharges or with 60 percent of total inpatient days attributable to Medicare beneficiaries. The program enabled the hospitals in question to choose the most favorable of three reimbursement methods. The program was extended, and phased out down to October 1994, in the Omnibus Budget Reconciliation Act of 1993. That act retained the choice of the three original reimbursement methods. But it reduced the reimbursement available from those original computation methods by 50 percent. My legislation would not extend the program as it was originally enacted by the Omnibus Budget Reconciliation Act of 1989. Rather, it would reinstate for 5 years the provisions contained in the Omnibus Budget Reconciliation Act of 1993. It would not have retroactive effect, however. The program would be revived for fiscal year 1998, and would terminate at the end of fiscal year 2002. As I noted above, the hospitals which would benefit from this program are small, rural hospitals providing an essential point of access to hospital and hospital-based services in rural areas and small towns. Obviously, if we lose these hospitals, we will also have a hard time keeping physicians in those communities. Mr. President, 44, or 36 percent, of Iowa's 122 community hospitals qualified to participate in this program in 1994, and 29, or 24 percent, chose to participate. I believe that this was the largest number of such hospitals of any State. For these hospitals, the percentage of all inpatient days attributable to Medicare patients was 77.4 percent in 1994, and Medicare discharges represented 65.5 percent of total discharges. Across all Iowa hospitals, the Association of Iowa Hospitals and Health Systems indicates that the Medicare share of inpatient days and discharges has increased in recent years, as non-Medicare admissions have dropped. As a result, it is likely that the program will provide a lifeline for even more Iowa hospitals now than in 1994. The expiration of the program has had a devastating effect on many of these hospitals, including a number with negative operating margins. The bottom line is that many of these hospitals have had, and will have, a very difficult time continuing to exist without the Medicare- Dependent Hospital Program. Mr. President, I am also going to continue to work for a limited service rural hospital bill. This bill will essentially extend the EACH/RPCH Program--the Essential Access Community Hospital and Rural Primary Care Hospital Program--to all the States. Taken together, these two pieces of legislation will allow the smaller hospitals in Iowa--and throughout America--to modify their missions in a deliberate and nondisruptive way, and to continue to provide the health care services essential to their communities. ______ By Mr. KENNEDY: S. 373. A bill to amend title XXVII of the Public Health Service Act and part 7 of subtitle B of title I of the Employee Retirement Income Security Act of 1974 to establish standards for protection of consumers in managed care plans and other health plans; to the Committee on Labor and Human Resources. the health insurance bill of rights act of 1997 Mr. KENNEDY. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record. There being no objection, the bill was ordered to be printed in the Record, as follows: S. 373 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE; TABLE OF CONTENTS. (a) Short Title.--This Act may be cited as the ``Health Insurance Bill of Rights Act of 1997''. (b) Table of Contents.--The table of contents of this Act is as follows: Sec. 1. Short title; table of contents. Sec. 2. Amendments to the Public Health Service Act. ``Part C--Patient Protection Standards ``Sec. 2770. Notice; additional definitions. ``Subpart 1--Access to Care ``Sec. 2771. Access to emergency care. ``Sec. 2772. Access to specialty care. ``Sec. 2773. Continuity of care. ``Sec. 2774. Choice of provider. ``Sec. 2775. Coverage for individuals participating in approved clinical trials. ``Sec. 2776. Access to needed prescription drugs. ``Subpart 2--Quality Assurance ``Sec. 2777. Internal quality assurance program. ``Sec. 2778. Collection of standardized data. ``Sec. 2779. Process for selection of providers. ``Sec. 2780. Drug utilization program. ``Sec. 2781. Standards for utilization review activities. ``Subpart 3--Patient Information ``Sec. 2782. Patient information. ``Sec. 2783. Protection of patient confidentiality. ``Subpart 4--Grievance Procedures ``Sec. 2784. Establishment of complaint and appeals process. ``Sec. 2785. Provisions relating to appeals of utilization review determinations and similar determinations. ``Sec. 2786. State health insurance ombudsmen. ``Subpart 5--Protection of Providers Against Interference with Medical Communications and Improper Incentive Arrangements ``Sec. 2787. Prohibition of interference with certain medical communications. ``Sec. 2788. Prohibition against transfer of indemnification or improper incentive arrangements. ``Subpart 6--Promoting Good Medical Practice and Protecting the Doctor- Patient Relationship ``Sec. 2789. Promoting good medical practice. Sec. 3. Amendments to the Employee Retirement Income Security Act of 1974. ``Sec. 713. Patient protection standards. SEC. 2. AMENDMENTS TO THE PUBLIC HEALTH SERVICE ACT. (a) Patient Protection Standards.--Title XXVII of the Public Health Service Act is amended-- (1) by redesignating part C as part D, and (2) by inserting after part B the following new part: ``Part C--Patient Protection Standards ``SEC. 2770. NOTICE; ADDITIONAL DEFINITIONS. ``(a) Notice.--A health insurance issuer under this part shall comply with the notice requirement under section 711(d) of the Employee Retirement Income Security Act of 1974 with respect to the requirements of this part as if such section applied to such issuer and such issuer were a group health plan. ``(b) Additional Definitions.--For purposes of this part: [[Page S1739]] ``(1) Nonparticipating physician or provider.--The term `nonparticipating physician or provider' means, with respect to health care items and services furnished to an enrollee under health insurance coverage, a physician or provider that is not a participating physician or provider for such services. ``(2) Participating physician or provider.--The term `participating physician or provider' means, with respect to health care items and services furnished to an enrollee under health insurance coverage, a physician or provider that furnishes such items and services under a contract or other arrangement with the health insurance issuer offering such coverage. ``Subpart 1--Access to Care ``SEC. 2771. ACCESS TO EMERGENCY CARE. ``(a) Prohibition of Certain Restrictions on Coverage of Emergency Services. ``(1) In general.--If health insurance coverage provides any benefits with respect to emergency services (as defined in paragraph (2)(B)), the health insurance issuer offering such coverage shall cover emergency services furnished to an enrollee-- ``(A) without the need for any prior authorization determination, ``(B) subject to paragraph (3), whether or not the physician or provider furnishing such services is a participating physician or provider with respect to such services, and ``(C) subject to paragraph (3), without regard to any other term or condition of such coverage (other than an exclusion of benefits, or an affiliation or waiting period, permitted under section 2701). ``(2) Emergency services; emergency medical condition.--For purposes of this section-- ``(A) Emergency medical condition based on prudent layperson.--The term `emergency medical condition' means a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent layperson, who possesses an average knowledge of health and medicine, could reasonably expect the absence of immediate medical attention to result in-- ``(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy, ``(ii) serious impairment to bodily functions, or ``(iii) serious dysfunction of any bodily organ or part. ``(B) Emergency services.--The term `emergency services' means-- ``(i) a medical screening examination (as required under section 1867 of the Social Security Act) that is within the capability of the emergency department of a hospital, including ancillary services routinely available to the emergency department, to evaluate an emergency medical condition (as defined in subparagraph (A)), and ``(ii) within the capabilities of the staff and facilities available at the hospital, such further medical examination and treatment as are required under section 1867 of the Social Security Act to stabilize the patient. ``(C) Trauma and burn centers.--The provisions of clause (ii) of subparagraph (B) apply to a trauma or burn center, in a hospital, that-- ``(i) is designated by the State, a regional authority of the State, or by the designee of the State, or ``(ii) is in a State that has not made such designations and meets medically recognized national standards. ``(3) Application of network restriction permitted in certain cases.-- ``(A) In general.--Except as provided in subparagraph (B), if a health insurance issuer in relation to health insurance coverage denies, limits, or otherwise differentiates in coverage or payment for benefits other than emergency services on the basis that the physician or provider of such services is a nonparticipating physician or provider, the issuer may deny, limit, or differentiate in coverage or payment for emergency services on such basis. ``(B) Network restrictions not permitted in certain exceptional cases.--The denial or limitation of, or differentiation in, coverage or payment of benefits for emergency services under subparagraph (A) shall not apply in the following cases: ``(i) Circumstances beyond control of enrollee.--The enrollee is unable to go to a participating hospital for such services due to circumstances beyond the control of the enrollee (as determined consistent with guidelines and subparagraph (C)). ``(ii) Likelihood of an adverse health consequence based on layperson's judgment.--A prudent layperson possessing an average knowledge of health and medicine could reasonably believe that, under the circumstances and consistent with guidelines, the time required to go to a participating hospital for such services could result in any of the adverse health consequences described in a clause of subsection (a)(2)(A). ``(iii) Physician referral.--A participating physician or other person authorized by the plan refers the enrollee to an emergency department of a hospital and does not specify an emergency department of a hospital that is a participating hospital with respect to such services. ``(C) Application of `beyond control' standards.--For purposes of applying subparagraph (B)(i), receipt of emergency services from a nonparticipating hospital shall be treated under the guidelines as being `due to circumstances beyond the control of the enrollee' if any of the following conditions are met: ``(i) Unconscious.--The enrollee was unconscious or in an otherwise altered mental state at the time of initiation of the services. ``(ii) Ambulance delivery.--The enrollee was transported by an ambulance or other emergency vehicle directed by a person other than the enrollee to the nonparticipating hospital in which the services were provided. ``(iii) Natural disaster.--A natural disaster or civil disturbance prevented the enrollee from presenting to a participating hospital for the provision of such services. ``(iv) No good faith effort to inform of change in participation during a contract year.--The status of the hospital changed from a participating hospital to a nonparticipating hospital with respect to emergency services during a contract year and the plan or issuer failed to make a good faith effort to notify the enrollee involved of such change. ``(v) Other conditions.--There were other factors (such as those identified in guidelines) that prevented the enrollee from controlling selection of the hospital in which the services were provided. ``(b) Assuring Coordinated Coverage of Maintenance Care and Post-Stabilization Care.-- ``(1) In general.--In the case of an enrollee who is covered under health insurance coverage issued by a health insurance issuer and who has received emergency services pursuant to a screening evaluation conducted (or supervised) by a treating physician at a hospital that is a nonparticipating provider with respect to emergency services, if-- ``(A) pursuant to such evaluation, the physician identifies post-stabilization care (as defined in paragraph (3)(B)) that is required by the enrollee, ``(B) the coverage provides benefits with respect to the care so identified and the coverage requires (but for this subsection) an affirmative prior authorization determination as a condition of coverage of such care, and ``(C) the treating physician (or another individual acting on behalf of such physician) initiates, not later than 30 minutes after the time the treating physician determines that the condition of the enrollee is stabilized, a good faith effort to contact a physician or other person authorized by the issuer (by telephone or other means) to obtain an affirmative prior authorization determination with respect to the care, then, without regard to terms and conditions specified in paragraph (2) the issuer shall cover maintenance care (as defined in paragraph (3)(A)) furnished to the enrollee during the period specified in paragraph (4) and shall cover post- stabilization care furnished to the enrollee during the period beginning under paragraph (5) and ending under paragraph (6). ``(2) Terms and conditions waived.--The terms and conditions (of coverage) described in this paragraph that are waived under paragraph (1) are as follows: ``(A) The need for any prior authorization determination. ``(B) Any limitation on coverage based on whether or not the physician or provider furnishing the care is a participating physician or provider with respect to such care. ``(C) Any other term or condition of the coverage (other than an exclusion of benefits, or an affiliation or waiting period, permitted under section 2701 and other than a requirement relating to medical necessity for coverage of benefits). ``(3) Maintenance care and post-stabilization care defined.--In this subsection: ``(A) Maintenance care.--The term `maintenance care' means, with respect to an individual who is stabilized after provision of emergency services, medically necessary items and services (other than emergency services) that are required by the individual to ensure that the individual remains stabilized during the period described in paragraph (4). ``(B) Post-stabilization care.--The term `post- stabilization care' means, with respect to an individual who is determined to be stable pursuant to a medical screening examination or who is stabilized after provision of emergency services, medically necessary items and services (other than emergency services and other than maintenance care) that are required by the individual. ``(4) Period of required coverage of maintenance care.--The period of required coverage of maintenance care of an individual under this subsection begins at the time of the request (or the initiation of the good faith effort to make the request) under paragraph (1)(C) and ends when-- ``(A) the individual is discharged from the hospital; ``(B) a physician (designated by the issuer involved) and with privileges at the hospital involved arrives at the emergency department of the hospital and assumes responsibility with respect to the treatment of the individual; or ``(C) the treating physician and the issuer agree to another arrangement with respect to the care of the individual. ``(5) When post-stabilization care required to be covered.-- ``(A) When treating physician unable to communicate request.--If the treating physician or other individual makes the good faith effort to request authorization under [[Page S1740]] paragraph (1)(C) but is unable to communicate the request directly with an authorized person referred to in such paragraph within 30 minutes after the time of initiating such effort, then post-stabilization care is required to be covered under this subsection beginning at the end of such 30-minute period. ``(B) When able to communicate request, and no timely response.-- ``(i) In general.--If the treating physician or other individual under paragraph (1)(C) is able to communicate the request within the 30-minute period described in subparagraph (A), the post-stabilization care requested is required to be covered under this subsection beginning 30 minutes after the time when the issuer receives the request unless a person authorized by the plan or issuer involved communicates (or makes a good faith effort to communicate) a denial of the request for the prior authorization determination within 30 minutes of the time when the issuer receives the request and the treating physician does not request under clause (ii) to communicate directly with an authorized physician concerning the denial. ``(ii) Request for direct physician-to-physician communication concerning denial.--If a denial of a request is communicated under clause (i), the treating physician may request to communicate respecting the denial directly with a physician who is authorized by the issuer to deny or affirm such a denial. ``(C) When no timely response to request for physician-to- physician communication.--If a request for physician-to- physician communication is made under subparagraph (B)(ii), the post-stabilization care requested is required to be covered under this subsection beginning 30 minutes after the time when the issuer receives the request from a treating physician unless a physician, who is authorized by the issuer to reverse or affirm the initial denial of the care, communicates (or makes a good faith effort to communicate) directly with the treating physician within such 30-minute period. ``(D) Disagreements over post-stabilization care.--If, after a direct physician-to-physician communication under subparagraph (C), the denial of the request for the post- stabilization care is not reversed and the treating physician communicates to the issuer involved a disagreement with such decision, the post-stabilization care requested is required to be covered under this subsection beginning as follows: ``(i) Delay to allow for prompt arrival of physician assuming responsibility.--If the issuer communicates that a physician (designated by the plan or issuer) with privileges at the hospital involved will arrive promptly (as determined under guidelines) at the emergency department of the hospital in order to assume responsibility with respect to the treatment of the enrollee involved, the required coverage of the post-stabilization care begins after the passage of such time period as would allow the prompt arrival of such a physician. ``(ii) Other cases.--If the issuer does not so communicate, the required coverage of the post-stabilization care begins immediately. ``(6) No requirement of coverage of post-stabilization care if alternate plan of treatment.-- ``(A) In general.--Coverage of post-stabilization care is not required under this subsection with respect to an individual when-- ``(i) subject to subparagraph (B), a physician (designated by the plan or issuer involved) and with privileges at the hospital involved arrives at the emergency department of the hospital and assumes responsibility with respect to the treatment of the individual; or ``(ii) the treating physician and the issuer agree to another arrangement with respect to the post-stabilization care (such as an appropriate transfer of the individual involved to another facility or an appointment for timely followup treatment for the individual). ``(B) Special rule where once care initiated.--Required coverage of requested post-stabilization care shall not end by reason of subparagraph (A)(i) during an episode of care (as determined by guidelines) if the treating physician initiated such care (consistent with a previous paragraph) before the arrival of a physician described in such subparagraph. ``(7) Construction.--Nothing in this subsection shall be construed as-- ``(A) preventing an issuer from authorizing coverage of maintenance care or post-stabilization care in advance or at any time; or ``(B) preventing a treating physician or other individual described in paragraph (1)(C) and an issuer from agreeing to modify any of the time periods specified in paragraphs (5) as it relates to cases involving such persons. ``(c) Limits on Cost-Sharing for Services Furnished in Emergency Departments.--If health insurance coverage provides any benefits with respect to emergency services, the health insurance issuer offering such coverage may impose cost sharing with respect to such services only if the following conditions are met: ``(1) Limitations on cost-sharing differential for nonparticipating providers.-- ``(A) No differential for certain services.--In the case of services furnished under the circumstances described in clause (i), (ii), or (iii) of subsection (a)(3)(B) (relating to circumstances beyond the control of the enrollee, the likelihood of an adverse health consequence based on layperson's judgment, and physician referral), the cost- sharing for such services provided by a nonparticipating provider or physician does not exceed the cost-sharing for such services provided by a participating provider or physician. ``(B) Only reasonable differential for other services.--In the case of other emergency services, any differential by which the cost-sharing for such services provided by a nonparticipating provider or physician exceeds the cost- sharing for such services provided by a participating provider or physician is reasonable (as determined under guidelines). ``(2) Only reasonable differential between emergency services and other services.--Any differential by which the cost-sharing for services furnished in an emergency department exceeds the cost-sharing for such services furnished in another setting is reasonable (as determined under guidelines). ``(3) Construction.--Nothing in paragraph (1)(B) or (2) shall be construed as authorizing guidelines other than guidelines that establish maximum cost-sharing differentials. ``(d) Information on Access to Emergency Services.--A health insurance issuer, to the extent a health insurance issuer offers health insurance coverage, shall provide education to enrollees on-- ``(1) coverage of emergency services (as defined in subsection (a)(2)(B)) by the issuer in accordance with the provisions of this section, ``(2) the appropriate use of emergency services, including use of the 911 telephone system or its local equivalent, ``(3) any cost sharing applicable to emergency services, ``(4) the process and procedures of the plan for obtaining emergency services, and ``(5) the locations of-- ``(A) emergency departments, and ``(B) other settings, in which participating physicians and hospitals provide emergency services and post-stabilization care. ``(e) General Definitions.--For purposes of this section: ``(1) Cost sharing.--The term `cost sharing' means any deductible, coinsurance amount, copayment or other out-of- pocket payment (other than premiums or enrollment fees) that a health insurance issuer offering health insurance issuer imposes on enrollees with respect to the coverage of benefits. ``(2) Good faith effort.--The term `good faith effort' has the meaning given such term in guidelines and requires such appropriate documentation as is specified under such guidelines. ``(3) Guidelines.--The term `guidelines' means guidelines established by the Secretary after consultation with an advisory panel that includes individuals representing emergency physicians, health insurance issuers, including at least one health maintenance organization, hospitals, employers, the States, and consumers. ``(4) Prior authorization determination.--The term `prior authorization determination' means, with respect to items and services for which coverage may be provided under health insurance coverage, a determination (before the provision of the items and services and as a condition of coverage of the items and services under the coverage) of whether or not such items and services will be covered under the coverage. ``(5) Stabilize.--The term `to stabilize' means, with respect to an emergency medical condition, to provide (in complying with section 1867 of the Social Security Act) such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from the facility. ``(6) Stabilized.--The term `stabilized' means, with respect to an emergency medical condition, that no material deterioration of the condition is likely, within reasonable medical probability, to result from or occur before an individual can be transferred from the facility, in compliance with the requirements of section 1867 of the Social Security Act. ``(7) Treating physician.--The term `treating physician' includes a treating health care professional who is licensed under State law to provide emergency services other than under the supervision of a physician. ``SEC. 2772. ACCESS TO SPECIALTY CARE. ``(a) Obstetrical and Gynecological Care.-- ``(1) In general.--If a health insurance issuer, in connection with the provision of health insurance coverage, requires or provides for an enrollee to designate a participating primary care provider-- ``(A) the issuer shall permit a female enrollee to designate a physician who specializes in obstetrics and gynecology as the enrollee's primary care provider; and ``(B) if such an enrollee has not designated such a provider as a primary care provider, the issuer-- ``(i) may not require prior authorization by the enrollee's primary care provider or otherwise for coverage of routine gynecological care (such as preventive women's health examinations) and pregnancy-related services provided by a participating physician who specializes in obstetrics and gynecology to [[Page S1741]] the extent such care is otherwise covered, and ``(ii) may treat the ordering of other gynecological care by such a participating physician as the prior authorization of the primary care provider with respect to such care under the coverage. ``(2) Construction.--Nothing in paragraph (1)(B)(ii) shall waive any requirements of coverage relating to medical necessity or appropriateness with respect to coverage of gynecological care so ordered. ``(b) Specialty Care.-- ``(1) Referral to specialty care for enrollees requiring treatment by specialists.-- ``(A) In general.--In the case of an enrollee who is covered under health insurance coverage offered by a health insurance issuer and who has a condition or disease of sufficient seriousness and complexity to require treatment by a specialist, the issuer shall make or provide for a referral to a specialist who is available and accessible to provide the treatment for such condition or disease. ``(B) Specialist defined.--For purposes of this subsection, the term `specialist' means, with respect to a condition, a health care practitioner, facility, or center (such as a center of excellence) that has adequate expertise through appropriate training and experience (including, in the case of a child, appropriate pediatric expertise) to provide high quality care in treating the condition. ``(C) Care under referral.--Care provided pursuant to such referral under subparagraph (A) shall be-- ``(i) pursuant to a treatment plan (if any) developed by the specialist and approved by the issuer, in consultation with the designated primary care provider or specialist and the enrollee (or the enrollee's designee), and ``(ii) in accordance with applicable quality assurance and utilization review standards of the issuer. Nothing in this subsection shall be construed as preventing such a treatment plan for an enrollee from requiring a specialist to provide the primary care provider with regular updates on the specialty care provided, as well as all necessary medical information. ``(D) Referrals to participating providers.--An issuer is not required under subparagraph (A) to provide for a referral to a specialist that is not a participating provider, unless the issuer does not have an appropriate specialist that is available and accessible to treat the enrollee's condition and that is a participating provider with respect to such treatment. ``(E) Treatment of nonparticipating providers.--If an issuer refers an enrollee to a nonparticipating specialist, services provided pursuant to the approved treatment plan shall be provided at no additional cost to the enrollee beyond what the

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STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
(Senate - February 27, 1997)

Text of this article available as: TXT PDF [Pages S1734-S1762] STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS By Mr. BOND (for himself and Mr. Ashcroft): S. 368. A bill to prohibit the use of Federal funds for human cloning research; to the Committee on Labor and Human Resources. RESEARCH LEGISLATION Mr. BOND. Mr. President, today I rise to introduce a measure on behalf of myself, Senator Ashcroft, and Senator Byrd which would prohibit permanently the use of Federal funds for human cloning research. I am sure most Americans by now have heard about the successful cloning of Dolly, the sheep, by Scottish scientists. Many people are now asking can similar techniques be used to clone a human being? Something that was once thought to be only science fiction is now close to being a reality. With the legislation I introduce today, I intend to make sure that human cloning stays within the realm of science fiction and does not become a reality. The bill that I am introducing with my colleagues today will place a permanent ban on Federal funding for human cloning or human cloning research. We must send a clear signal: Human cloning is something we cannot and should not tolerate. This type of research on humans is morally reprehensible. We should not be creating human beings for spare parts or as replacements. Moreover, a National Institutes of Health human embryo panel noted, ``allowing society to create genetically identical persons would devalue human life by undermining the individuality of human beings.'' In a September 1994 report of the Human Embryo Research Panel, the heading is, ``Research Considered Unacceptable for Federal Funding.'' It said: [[Page S1735]] Four ethical considerations entered into the deliberations of the panel as it determined what types of research were unacceptable for Federal funding: The potential adverse consequences of the research for children, women and men; the respect due the reimplantation embryo; concern for public sensitivities in highly controversial research proposals, and concern for the meaning of humanness, parenthood, and the successions of generations. The President has said we should study the issue. President Clinton has asked a Federal bioethicist board to consider the implications of this research and report back to him within 90 days. I do not think we need to study this. I think we can save the board some effort because the President's own administration has concluded that human cloning was ``research considered unacceptable for Federal funding.'' There are some aspects of life which simply ought to be off limits to science. I think it will be helpful to go through some of the ethical considerations the board looked at. First, they asked: Is it ethical to create genetically identical individuals who can be born at different times? Is it ethical to store a frozen human embryo that is genetically identical to a born child in order to serve as a later source for organ and tissue transplantation; thus treating humans as spare parts? Is it ethical to create a genetically identical child as a replacement in case the first child dies? Again, these are just a sample of the ethical questions the issue poses. The board concluded the analysis by stating: There are broad moral concerns about the deliberate duplication of an individual genome. The notion of cloning an existing human being or of making ``carbon copies'' of an existing embryo appears repugnant to members of the public. Many Members of the panel share this view and see no justification for Federal funding of such research. I also should point out an important distinction with this bill. It is narrowly drafted so that it only affects human cloning research. It does not address the issue of plant and animal cloning research, and it will also allow--and I personally strongly support--NIH to continue its human genome mapping project. I have long been a supporter of biotechnology, genome mapping and manipulation, and even plant and animal cloning. But we can draw a clear line here. For plants and animals, it makes sense to clone your specimens to improve human health and human well-being. But when we are talking about creating an entire human being, identical to another, we are talking about playing God, and that is where we must draw the line. I note, the Vatican and leading ethicists throughout the country have called for a ban on human cloning and human cloning research. I ask unanimous consent that the names of those ethicists and scientists be printed in the Record. There being no objection, the material was ordered to be printed in the Record, as follows: Dr. Ted Cicero, Vice Chancellor for Research at Washington University in St. Louis, Missouri. Dr. Kevin Fitzgerald, a Jesuit priest and a geneticist at Loyola University in Illinois. Arthur Caplan, head of the Center for Bioethics at the University of Pennsylvania. Dr. Harmon Smith, Professor of Moral Theology at Duke University. ______ By Mr. JEFFORDS (for himself, Mr. Kennedy, Mr. Chafee, Ms. Mikulski, Ms. Collins, Mrs. Murray, Mr. Dodd, Mr. Hollings, Mr. Glenn and Mr. Reed): S. 369. A bill to amend section 1128B of the Social Security Act to repeal the criminal penalty for fraudulent disposition of assets in order to obtain medicaid benefits added by section 217 of the Health Insurance Portability and Accountability Act of 1996; to the Committee on Finance. HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT AMENDMENTS Mr. JEFFORDS. Mr. President, I am on the floor today to introduce legislation that will repeal section 217 of the Health Insurance Portability and Accountability Act [HIPAA]. As enacted last year, this provision for the first time creates Federal criminal penalties for elders who transfer their assets and who subsequently apply for Medicaid but are deemed ineligible for nursing home benefits. I believe the goal to stop fraud and abuse in the Medicaid Program is laudable and must be pursued. However, there is a growing consensus that section 217 is a vague, unenforceable, criminal sanction misdirected at the elderly. It is unduly threatening to the Nation's senior citizens. We are sending the wrong message by implying there is something wrong or illegal with obtaining sound financial advice and estate planning to legitimately protect the assets that senior citizens have spent a lifetime accruing. During a recent hearing before the Committee on Labor and Human Resources, on the implementation of HIPAA, several concerns were raised about this issue. Ms. Gail Shearer, the director of health policy analysis of the Consumers Union, testified that section 217 was ``leading to considerable alarm among seniors'' and that she was ``deeply troubled by the prospect of HIPAA leading to the transfer of elderly nursing home residents from their nursing home to prison.'' At that same hearing, Mr. Bruce Vladek, the administrator of the Health Care Financing Administration, pointed out that there is no evidence that large numbers of the elderly are impoverishing themselves to become Medicaid eligible. He expressed his belief that a few people doing something egregious can create the perception of a widespread problem. It is especially unclear how pervasive this practice is, particularly in light of actions already taken by Congress to curb these asset transfers. Repeal of section 217 would not affect several other restrictions now on the books designed to close loopholes and stop the inappropriate transfer of assets. People found to have transferred nonexempt assets within a look-back period are determined ineligible and denied Medicaid nursing home assistance for the period over which their assets would have paid. The look-back period for asset transfers is 36 months, with a 60-month period for trusts. States are also required to establish estate recovery programs to compensate for nursing home services paid for by the Medicaid Program. There is no systematic study that has determined or recommended that the addition of criminal sanctions to the penalties which already exist are necessary to address inappropriate asset transfers by the elderly. In the absence of a demonstrated need for criminal penalties, we believe that section 217 holds the potential to do more harm than good. No one really wants to send Granny to jail. In fact, it has been reported that the intended targets of section 217 are those who have created a cottage industry, and made substantial sums of money, from advising the elderly on how to transfer their assets to become Medicaid eligible. Ironically, section 217 has had the opposite effect. Recent newspaper ads placed by these advisers from Portland, ME, to Phoenix, AZ, now use this very law to drum up business. The bold-print headlines of these ads read: Sneaky New Law Buried in the Health Insurance Bill Can Put Unsuspecting Seniors and Retirees Behind Bars!, and You Only Have Until December 31st, 1996, To Avoid Making the Mistake That Could Toss You in Jail . . . Congress' Sneaky New Law Is the Most Vicious Attack on Retirees Yet! Mr. President, fraud and abuse in the Medicaid Program must not be tolerated, and taxpayers should not have to pay nursing home bills for persons who have the wherewithal to pay for their own care. But neither should confusing, unenforceable laws be in place that impose Federal criminal penalties on elderly individuals where there is no clear understanding of what does and what does not constitute a criminal activity. Organizations urging repeal of the provision include: the American Association of Retired Persons, the Alzheimer's Association, the Leadership Council on Aging--a group of more than 40 national organizations in the field of aging--and the American Bar Association. I believe that we in the Congress owe it to our senior citizens to stop their needless anxiety over this misdirected, confusing law. We need to repeal section 217. I urge my colleagues to join me in repealing this unnecessary and unworkable law. Mr. President, I ask unanimous-consent that the text of the bill be printed in the Record. [[Page S1736]] There being no objection, the bill was ordered to be printed in the Record, as follows: S. 369 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. REPEAL OF CRIMINAL PENALTY FOR FRAUDULENT DISPOSITION OF ASSETS IN ORDER TO OBTAIN MEDICAID BENEFITS. (a) Repeal.--Section 1128B(a) of the Social Security Act (42 U.S.C. 1320a-7b(a)), as amended by section 217 of the Health Insurance Portability and Accountability Act of 1996 (Public Law 104-191; 110 Stat. 2008), is amended-- (1) by adding ``or'' at the end of paragraph (4); (2) by striking ``or'' at the end of paragraph (5) and inserting a comma; and (3) by striking paragraph (6). (b) Effective Date.--The amendments made by subsection (a) take effect as if included in the enactment of the Health Insurance Portability and Accountability Act of 1996 (Public Law 104-191; 110 Stat. 1936). Mr. KENNEDY. Mr. President, I commend Senator Jeffords for his leadership on this legislation and I am honored to join him on it. Our bill repeals the criminal penalties enacted last year for disposing of assets in order to obtain Medicaid benefits. We all agree that Medicaid must be free of fraud and abuse. No one should be able to game the system by giving away their assets just to qualify for Medicaid, a program intended to help the truly needy. The criminal penalties enacted last year was a mistake and should never have been enacted. They are poorly drafted, and will have unintended consequences that penalize senior citizens unfairly. Indeed, this provision could frighten the most needy elderly away from seeking the care they need, while doing little to deter and punish those who defraud the system. No serious study has defined abusive transfers of assets as a significant problem, or recommended criminalizing an action that is already prohibited and penalized in other ways. If middle and upper income families are transferring assets to qualify for Medicaid, it should be the topic of congressional hearings and investigation, so that we can evaluate the scope of the problem and develop an appropriate response. In the meantime, seniors should not be terrorized with threats of jail merely for seeking nursing home care. The current debate over this issue reveals a much larger problem--the need for better coverage of long-term care, so that those requiring long nursing home stays don't have to sacrifice their life savings to pay for their care. There is broad bipartisan support in Congress for repeal of this provision. The White House supports repeal. Advocacy groups for the elderly support repeal. I urge Congress to act quickly on this legislation, and provide peace of mind to senior citizens across the country who feel unfairly threatened by current law. ______ By Mr. GRASSLEY (for himself, Mr. Conrad, and Mr. Hollings): S. 370. A bill to amend title XVIII of the Social Security Act to provide for increased Medicare reimbursement for nurse practitioners and clinical nurse specialists to increase the delivery of health services in health professional shortage areas, and for other purposes; to the Committee on Finance. THE PRIMARY CARE HEALTH PRACTITIONER INCENTIVE ACT OF 1997 Mr. GRASSLEY. Mr. President, today, on behalf of myself, Senator Conrad, Senator Dorgan, and Senator Hollings, I am introducing two bills. If enacted, these bills would increase access to primary care for Medicare beneficiaries in rural and inner-city communities. The Primary Care Health Practitioner Incentive Act of 1997 would reform Medicare reimbursement to nurse practitioners [NP's] and clinical nurse specialists [CNS's]. The Physician Assistant Incentive Act of 1997 would reform Medicare reimbursement for physician assistants. We introduced these bills in the last three Congresses. We are reintroducing them today to improve access to primary care services for Medicare beneficiaries, particularly in rural and underserved areas. This legislation would reform Medicare policies which, under certain circumstances, restrict reimbursement for services delivered by these providers. Similar measures are included in the President's Medicare proposal and were part of the Balanced Budget Act of 1995. The Medicare Program currently covers the services of these practitioners. However, payment levels vary depending on treatment settings and geographic area. In most cases, reimbursement may not be made directly to the nonphysician provider. Rather, it must be made to the employer of the provider, often a physician. The legislation authorizing these different reimbursement arrangements was passed in an incremental fashion over the years. The Medicare law, which authorizes reimbursement of these providers, is also inconsistent with State law in many cases. For instance, in Iowa, State law requires nonphysicians to practice with either a supervising physician or a collaborating physician. However, under Iowa law, the supervising physician need not be physically present in the same facility as the nonphysician practitioner and, in many instances, can be located in a different site from that of the nonphysician practitioner he or she is supervising. Unfortunately, Medicare policy will not recognize such relationships. Instead, the law requires that the physician be present in the same building as the nonphysician practitioner in order for the services of these nonphysician providers to be reimbursed. This is known as the incident to provision, referring to services that are provided incident to a physician's services. This has created a problem in Iowa, Mr. President. In many parts of my State, clinics have been established using nonphysician practitioners, particularly physician assistants, to provide primary health care services in communities that are unable to recruit a physician. The presence of these practitioners insures that primary health care services will be available to the community. Iowa's Medicare carrier has strictly interpreted the incident to requirement of Medicare law as requiring the physical presence of a supervising physician in places where physician assistants practice. This has caused many of the clinics using physician assistants to close, and thus has deprived the community of primary health care services. Mr. President, in 1995 the Iowa Hospital Association suggested a number of ways to improve access and cost effectiveness in the Medicare Program. One of their suggestions was that this incident to restriction be relaxed. They said: In rural Iowa, most physicians are organized in solo or small group practices. Physician assistants are used to augment these practices. With emergency room coverage requirements, absences due to vacation, continuing education or illness and office hours in satellite clinics, there are instances on a monthly basis where the physician assistant is providing care to patients without a physician in the clinic. Medicare patients in the physician clinic where the physician assistant is located have to either wait for the physician to return from the emergency room or care is provided without this provision. If enacted, this legislation would establish a more uniform payment policy for these providers. It would authorize reimbursement of their services as long as they were practicing within State law and their professional scope of practice. It calls for reimbursement of these provider groups at 85 percent of the physician fee schedule for services they provide in all treatment settings and in all geographic areas. Where it is permitted under State law, reimbursement would be authorized even if these nonphysician providers are not under the direct, physical supervision of a physician. Currently, the services of these nonphysician practitioners are paid at 100 percent of the physician's rate when provided ``incident to'' a physician's services. If enacted, this legislation would discontinue this ``incident to'' policy. Medicare reimbursement would now be provided directly to the nurse practitioners and clinical nurse specialists and it would be provided to the employer of the physician assistant. These bills also call for a 10-percent bonus payment when these practitioners work in health professional shortage areas [HPSA's]. Senator Conrad and I believe these provisions will encourage nonphysician practitioners to relocate in areas in need of health care services. Mr. President, legislation closely paralleling these bills we are introducing today is being introduced this week in the House by Representatives Nancy [[Page S1737]] Johnson and Ed Towns. In addition, these provisions are included in the President's Medicare proposal. Historically, this legislation has received bipartisan support in both Houses. Comparable legislation was included in the Balanced Budget Act of 1995, as well as several other health care measures in previous Congresses. Therefore, I urge my colleagues to support this legislation. Mr. HOLLINGS. Mr. President, I join my colleagues Senators Conrad and Grassley in introducing the Primary Care Health Practitioner Incentive Act of 1997. Today I specifically want to address the provision that would allow for direct Medicare reimbursement for services provided by nurse practitioners and clinical nurse specialists regardless of geographic location. For many years we have been trying to pass legislation that would allow these health care providers in urban settings the same direct Medicare reimbursement as those in a rural setting, and I am hopeful that this is the year it will actually be enacted. Currently, nurse practitioners and clinical nurse specialists may treat Medicare patients without a physician present if they practice in a rural setting or in a long-term care facility. I believe that it is time for this antiquated restraint to practice to be removed so that health care choices may be improved and increased for all Medicare patients. If we are to have any hope of providing adequate care with huge reductions in both Medicare and Medicaid, it is essential that service be provided by the least costly provider of quality care. We simply cannot afford to ignore the quality care of which nurse practitioners and clinical nurse specialists have proven they are capable. I would also like to point out that many times there is a discrepancy in the designation of rural and urban areas. In my home State of South Carolina, as in other States, a number of the areas listed as urban are, in reality, rural areas. Medicare patients in these areas are unable to receive home visits or utilize local community satellite offices staffed with nurse practitioners. Rather, they are required to travel miles to see a physician. As a result, many patients forgo preventive health care and wait to seek care until they become so ill that they must be hospitalized or they are forced to seek care in more expensive emergency rooms. Not only is access to physicians more limited, but their fees for services are usually higher as well. Recent figures published by the American Academy of Nurse Practitioners estimate a cost savings of greater than $54 million per year if nurse practitioners were utilized appropriately in the provision of Medicare services in ambulatory care settings. The primary objective of nurse practitioners and clinical nurse specialists is to provide routine care, manage chronic conditions, promote preventive health care, and make medical care more accessible and less expensive. Nurse practitioners and clinical nurse specialists have proven that they are able to provide high-quality, cost-effective primary care in all settings in which they provide services. It is foolish to restrict their ability to provide primary care services to the elderly based on setting or geographic location, and I urge your consideration and the passage of this bill. ______ By Mr. GRASSLEY (for himself, Mr. Conrad, and Mr. Hollings): S. 371. A bill to amend title XVIII of the Social Security Act to provide for increased medicare reimbursement for physician assistants, to increase the delivery of health services in health professional shortage areas, and for other purposes; to the Committee on Finance. THE PHYSICIAN ASSISTANT INCENTIVE ACT OF 1997 Mr. CONRAD. Mr. President, Senator Grassley and I are again introducing legislation to improve Medicare reimbursement policy for nurse practitioners, clinical nurse specialists, and physician assistants. The Primary Care Health Practitioner Incentive Act and the Physician Assistant Incentive Act of 1997 are very similar to S. 864 and S. 863, which we introduced in the 104th Congress. This legislation passed both Houses as part of reconciliation in 1995. I am very hopeful that this bipartisan legislation will garner widespread support and be signed into law as part of a Medicare reform bill this year. We believe our legislation will help all Americans by making the best possible use of primary care providers who play a vital role in our health care delivery infrastructure. Throughout the country, nurse practitioners, clinical nurse specialists and physician assistants have the skills to provide needed primary care services. This is particularly important in rural and underserved areas that have shortages of physicians. In recent years, our Nation's health care system has put a renewed emphasis on the use of primary care and wellness. Nurse practitioners, physician assistants, and clinical nurse specialists are uniquely positioned to provide this care. Nurse practitioners are registered nurses with advanced education and clinical training, often in a specialty area such as geriatrics or women's health. Nearly half of the Nation's 25,000 nurse practitioners have master's degrees. Clinical nurse specialists are required to have master's degrees and usually work in teritary care settings such as cardiac care. Many, however, also work in primary care. Physician assistants receive an average of 2 years of physician-supervised clinical training and classroom instruction and work in all setting providing diagnostic, therapeutic, and preventive care services. Each of these providers work with physicians in varying degrees usually in consultation. Within their areas of competence, these health care providers deliver care of exceptional quality. These practitioners play a vital role in communities that cannot support a physician but can afford a nurse practitioner or physician assistant; historically, these providers have been willing to move to both rural and inner-city areas that are underserved by health care providers. In fact, there are 50 communities in North Dakota that are taking advantage of the services provided by these care givers. Unfortunately, unless we make changes in our Federal reimbursement scheme, many areas of the country will not be able to benefit from these needed services. Current Medicare reimbursement rules were developed in an ad hoc fashion; as a result, they are inconsistent, incoherent, and nearly inexplicable. Current law provides reimbursement for advanced practice nurses in rural settings. But if the same patient sees the same nurse practitioner in a satellite clinic in an equally rural community that happens to be within an MSA county, reimbursement becomes subject to the ``incident to'' rule that HCFA has interpreted to require the physical presence of a physician in the building. In rural North Dakota and in rural communities throughout the country, that scenario is often inconsistent with the realities of health care delivery. Doctors in these areas often rotate between several clinics in a region that is staffed on a full-time basis by a physician assistant, nurse practitioner, or other provider. This allows physicians to cover a wider area and affords more rural residents access to basic primary care services. Current Medicare rules work against this, however. If a Medicare patient requires care when a physician is away at another clinic or out on an emergency call, the physician assistant or other provider will not be reimbursed by Medicare for the same care that would have been paid for if a physician was in the next room. Moreover, if the nurse practitioner crosses the street from a free- standing clinic to a hospital-affiliated outpatient clinic, the reimbursement rules change once again. Physician assistants are subject to an equally bewildering set of reimbursement rules that serve to prevent their effective use by the Medicare Program. Other complications also cause problems. State laws are often inconsistent with the Medicare requirements. In North Dakota, care provided by a physician assistant is reimbursed even if a physician is not present. Across the country, there also are a wide variety of payment mechanisms that result in reimbursement variations in different settings and among different providers. The Office of Technology Assessment, the Physician Payment Review Commission, and these providers themselves have all expressed the need for consistency and sensibility in a reimbursement system that acknowledges [[Page S1738]] the reality of today's medical marketplace. Our colleagues shared those sentiments in 1995 by passing this legislation in both Houses. The legislation Senator Grassley and I are introducing today will provide each of these groups with reimbursement at 85 percent of the physician fee schedule. They will also provide a bonus payment to those providers who choose to practice in areas designated as Health Professional Shortage Areas [HPSA's]. The health care access problems faced by residents of these communities could be dramatically improved through the use of this special class of primary care providers. Finally, our legislation will ensure that a nurse practitioner who cares for a patient will get paid directly for that service. This legislation offers an example how Medicare can and should increase access to care by promoting the use of cost-effective providers to a much higher degree without compromising the quality of care that older Americans receive. There was a clear agreement on these issues in the 104th Congress, and we urge our Democratic and Republican colleagues to continue to support this legislation in the 105th Congress. ______ By Mr. GRASSLEY: S. 372. A bill to amend title XVIII of the Social Security Act to provide for a 5-year reinstatement of the Medicare-dependent, small, rural hospital payment provisions, and for other purposes; to the Committee on Finance. THE MEDICARE DEPENDENT HOSPITALS PROGRAM REINSTATEMENT ACT Mr. GRASSLEY. Mr. President, I introduce a bill which would reinstate the Medicare-Dependent Hospital Program. This program expired in October 1994. As its title implied, the hospitals it helped were those which were very dependent on Medicare reimbursement. These were small--100 beds or less--rural hospitals with not less than 60 percent of total discharges or with 60 percent of total inpatient days attributable to Medicare beneficiaries. The program enabled the hospitals in question to choose the most favorable of three reimbursement methods. The program was extended, and phased out down to October 1994, in the Omnibus Budget Reconciliation Act of 1993. That act retained the choice of the three original reimbursement methods. But it reduced the reimbursement available from those original computation methods by 50 percent. My legislation would not extend the program as it was originally enacted by the Omnibus Budget Reconciliation Act of 1989. Rather, it would reinstate for 5 years the provisions contained in the Omnibus Budget Reconciliation Act of 1993. It would not have retroactive effect, however. The program would be revived for fiscal year 1998, and would terminate at the end of fiscal year 2002. As I noted above, the hospitals which would benefit from this program are small, rural hospitals providing an essential point of access to hospital and hospital-based services in rural areas and small towns. Obviously, if we lose these hospitals, we will also have a hard time keeping physicians in those communities. Mr. President, 44, or 36 percent, of Iowa's 122 community hospitals qualified to participate in this program in 1994, and 29, or 24 percent, chose to participate. I believe that this was the largest number of such hospitals of any State. For these hospitals, the percentage of all inpatient days attributable to Medicare patients was 77.4 percent in 1994, and Medicare discharges represented 65.5 percent of total discharges. Across all Iowa hospitals, the Association of Iowa Hospitals and Health Systems indicates that the Medicare share of inpatient days and discharges has increased in recent years, as non-Medicare admissions have dropped. As a result, it is likely that the program will provide a lifeline for even more Iowa hospitals now than in 1994. The expiration of the program has had a devastating effect on many of these hospitals, including a number with negative operating margins. The bottom line is that many of these hospitals have had, and will have, a very difficult time continuing to exist without the Medicare- Dependent Hospital Program. Mr. President, I am also going to continue to work for a limited service rural hospital bill. This bill will essentially extend the EACH/RPCH Program--the Essential Access Community Hospital and Rural Primary Care Hospital Program--to all the States. Taken together, these two pieces of legislation will allow the smaller hospitals in Iowa--and throughout America--to modify their missions in a deliberate and nondisruptive way, and to continue to provide the health care services essential to their communities. ______ By Mr. KENNEDY: S. 373. A bill to amend title XXVII of the Public Health Service Act and part 7 of subtitle B of title I of the Employee Retirement Income Security Act of 1974 to establish standards for protection of consumers in managed care plans and other health plans; to the Committee on Labor and Human Resources. the health insurance bill of rights act of 1997 Mr. KENNEDY. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record. There being no objection, the bill was ordered to be printed in the Record, as follows: S. 373 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE; TABLE OF CONTENTS. (a) Short Title.--This Act may be cited as the ``Health Insurance Bill of Rights Act of 1997''. (b) Table of Contents.--The table of contents of this Act is as follows: Sec. 1. Short title; table of contents. Sec. 2. Amendments to the Public Health Service Act. ``Part C--Patient Protection Standards ``Sec. 2770. Notice; additional definitions. ``Subpart 1--Access to Care ``Sec. 2771. Access to emergency care. ``Sec. 2772. Access to specialty care. ``Sec. 2773. Continuity of care. ``Sec. 2774. Choice of provider. ``Sec. 2775. Coverage for individuals participating in approved clinical trials. ``Sec. 2776. Access to needed prescription drugs. ``Subpart 2--Quality Assurance ``Sec. 2777. Internal quality assurance program. ``Sec. 2778. Collection of standardized data. ``Sec. 2779. Process for selection of providers. ``Sec. 2780. Drug utilization program. ``Sec. 2781. Standards for utilization review activities. ``Subpart 3--Patient Information ``Sec. 2782. Patient information. ``Sec. 2783. Protection of patient confidentiality. ``Subpart 4--Grievance Procedures ``Sec. 2784. Establishment of complaint and appeals process. ``Sec. 2785. Provisions relating to appeals of utilization review determinations and similar determinations. ``Sec. 2786. State health insurance ombudsmen. ``Subpart 5--Protection of Providers Against Interference with Medical Communications and Improper Incentive Arrangements ``Sec. 2787. Prohibition of interference with certain medical communications. ``Sec. 2788. Prohibition against transfer of indemnification or improper incentive arrangements. ``Subpart 6--Promoting Good Medical Practice and Protecting the Doctor- Patient Relationship ``Sec. 2789. Promoting good medical practice. Sec. 3. Amendments to the Employee Retirement Income Security Act of 1974. ``Sec. 713. Patient protection standards. SEC. 2. AMENDMENTS TO THE PUBLIC HEALTH SERVICE ACT. (a) Patient Protection Standards.--Title XXVII of the Public Health Service Act is amended-- (1) by redesignating part C as part D, and (2) by inserting after part B the following new part: ``Part C--Patient Protection Standards ``SEC. 2770. NOTICE; ADDITIONAL DEFINITIONS. ``(a) Notice.--A health insurance issuer under this part shall comply with the notice requirement under section 711(d) of the Employee Retirement Income Security Act of 1974 with respect to the requirements of this part as if such section applied to such issuer and such issuer were a group health plan. ``(b) Additional Definitions.--For purposes of this part: [[Page S1739]] ``(1) Nonparticipating physician or provider.--The term `nonparticipating physician or provider' means, with respect to health care items and services furnished to an enrollee under health insurance coverage, a physician or provider that is not a participating physician or provider for such services. ``(2) Participating physician or provider.--The term `participating physician or provider' means, with respect to health care items and services furnished to an enrollee under health insurance coverage, a physician or provider that furnishes such items and services under a contract or other arrangement with the health insurance issuer offering such coverage. ``Subpart 1--Access to Care ``SEC. 2771. ACCESS TO EMERGENCY CARE. ``(a) Prohibition of Certain Restrictions on Coverage of Emergency Services. ``(1) In general.--If health insurance coverage provides any benefits with respect to emergency services (as defined in paragraph (2)(B)), the health insurance issuer offering such coverage shall cover emergency services furnished to an enrollee-- ``(A) without the need for any prior authorization determination, ``(B) subject to paragraph (3), whether or not the physician or provider furnishing such services is a participating physician or provider with respect to such services, and ``(C) subject to paragraph (3), without regard to any other term or condition of such coverage (other than an exclusion of benefits, or an affiliation or waiting period, permitted under section 2701). ``(2) Emergency services; emergency medical condition.--For purposes of this section-- ``(A) Emergency medical condition based on prudent layperson.--The term `emergency medical condition' means a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent layperson, who possesses an average knowledge of health and medicine, could reasonably expect the absence of immediate medical attention to result in-- ``(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy, ``(ii) serious impairment to bodily functions, or ``(iii) serious dysfunction of any bodily organ or part. ``(B) Emergency services.--The term `emergency services' means-- ``(i) a medical screening examination (as required under section 1867 of the Social Security Act) that is within the capability of the emergency department of a hospital, including ancillary services routinely available to the emergency department, to evaluate an emergency medical condition (as defined in subparagraph (A)), and ``(ii) within the capabilities of the staff and facilities available at the hospital, such further medical examination and treatment as are required under section 1867 of the Social Security Act to stabilize the patient. ``(C) Trauma and burn centers.--The provisions of clause (ii) of subparagraph (B) apply to a trauma or burn center, in a hospital, that-- ``(i) is designated by the State, a regional authority of the State, or by the designee of the State, or ``(ii) is in a State that has not made such designations and meets medically recognized national standards. ``(3) Application of network restriction permitted in certain cases.-- ``(A) In general.--Except as provided in subparagraph (B), if a health insurance issuer in relation to health insurance coverage denies, limits, or otherwise differentiates in coverage or payment for benefits other than emergency services on the basis that the physician or provider of such services is a nonparticipating physician or provider, the issuer may deny, limit, or differentiate in coverage or payment for emergency services on such basis. ``(B) Network restrictions not permitted in certain exceptional cases.--The denial or limitation of, or differentiation in, coverage or payment of benefits for emergency services under subparagraph (A) shall not apply in the following cases: ``(i) Circumstances beyond control of enrollee.--The enrollee is unable to go to a participating hospital for such services due to circumstances beyond the control of the enrollee (as determined consistent with guidelines and subparagraph (C)). ``(ii) Likelihood of an adverse health consequence based on layperson's judgment.--A prudent layperson possessing an average knowledge of health and medicine could reasonably believe that, under the circumstances and consistent with guidelines, the time required to go to a participating hospital for such services could result in any of the adverse health consequences described in a clause of subsection (a)(2)(A). ``(iii) Physician referral.--A participating physician or other person authorized by the plan refers the enrollee to an emergency department of a hospital and does not specify an emergency department of a hospital that is a participating hospital with respect to such services. ``(C) Application of `beyond control' standards.--For purposes of applying subparagraph (B)(i), receipt of emergency services from a nonparticipating hospital shall be treated under the guidelines as being `due to circumstances beyond the control of the enrollee' if any of the following conditions are met: ``(i) Unconscious.--The enrollee was unconscious or in an otherwise altered mental state at the time of initiation of the services. ``(ii) Ambulance delivery.--The enrollee was transported by an ambulance or other emergency vehicle directed by a person other than the enrollee to the nonparticipating hospital in which the services were provided. ``(iii) Natural disaster.--A natural disaster or civil disturbance prevented the enrollee from presenting to a participating hospital for the provision of such services. ``(iv) No good faith effort to inform of change in participation during a contract year.--The status of the hospital changed from a participating hospital to a nonparticipating hospital with respect to emergency services during a contract year and the plan or issuer failed to make a good faith effort to notify the enrollee involved of such change. ``(v) Other conditions.--There were other factors (such as those identified in guidelines) that prevented the enrollee from controlling selection of the hospital in which the services were provided. ``(b) Assuring Coordinated Coverage of Maintenance Care and Post-Stabilization Care.-- ``(1) In general.--In the case of an enrollee who is covered under health insurance coverage issued by a health insurance issuer and who has received emergency services pursuant to a screening evaluation conducted (or supervised) by a treating physician at a hospital that is a nonparticipating provider with respect to emergency services, if-- ``(A) pursuant to such evaluation, the physician identifies post-stabilization care (as defined in paragraph (3)(B)) that is required by the enrollee, ``(B) the coverage provides benefits with respect to the care so identified and the coverage requires (but for this subsection) an affirmative prior authorization determination as a condition of coverage of such care, and ``(C) the treating physician (or another individual acting on behalf of such physician) initiates, not later than 30 minutes after the time the treating physician determines that the condition of the enrollee is stabilized, a good faith effort to contact a physician or other person authorized by the issuer (by telephone or other means) to obtain an affirmative prior authorization determination with respect to the care, then, without regard to terms and conditions specified in paragraph (2) the issuer shall cover maintenance care (as defined in paragraph (3)(A)) furnished to the enrollee during the period specified in paragraph (4) and shall cover post- stabilization care furnished to the enrollee during the period beginning under paragraph (5) and ending under paragraph (6). ``(2) Terms and conditions waived.--The terms and conditions (of coverage) described in this paragraph that are waived under paragraph (1) are as follows: ``(A) The need for any prior authorization determination. ``(B) Any limitation on coverage based on whether or not the physician or provider furnishing the care is a participating physician or provider with respect to such care. ``(C) Any other term or condition of the coverage (other than an exclusion of benefits, or an affiliation or waiting period, permitted under section 2701 and other than a requirement relating to medical necessity for coverage of benefits). ``(3) Maintenance care and post-stabilization care defined.--In this subsection: ``(A) Maintenance care.--The term `maintenance care' means, with respect to an individual who is stabilized after provision of emergency services, medically necessary items and services (other than emergency services) that are required by the individual to ensure that the individual remains stabilized during the period described in paragraph (4). ``(B) Post-stabilization care.--The term `post- stabilization care' means, with respect to an individual who is determined to be stable pursuant to a medical screening examination or who is stabilized after provision of emergency services, medically necessary items and services (other than emergency services and other than maintenance care) that are required by the individual. ``(4) Period of required coverage of maintenance care.--The period of required coverage of maintenance care of an individual under this subsection begins at the time of the request (or the initiation of the good faith effort to make the request) under paragraph (1)(C) and ends when-- ``(A) the individual is discharged from the hospital; ``(B) a physician (designated by the issuer involved) and with privileges at the hospital involved arrives at the emergency department of the hospital and assumes responsibility with respect to the treatment of the individual; or ``(C) the treating physician and the issuer agree to another arrangement with respect to the care of the individual. ``(5) When post-stabilization care required to be covered.-- ``(A) When treating physician unable to communicate request.--If the treating physician or other individual makes the good faith effort to request authorization under [[Page S1740]] paragraph (1)(C) but is unable to communicate the request directly with an authorized person referred to in such paragraph within 30 minutes after the time of initiating such effort, then post-stabilization care is required to be covered under this subsection beginning at the end of such 30-minute period. ``(B) When able to communicate request, and no timely response.-- ``(i) In general.--If the treating physician or other individual under paragraph (1)(C) is able to communicate the request within the 30-minute period described in subparagraph (A), the post-stabilization care requested is required to be covered under this subsection beginning 30 minutes after the time when the issuer receives the request unless a person authorized by the plan or issuer involved communicates (or makes a good faith effort to communicate) a denial of the request for the prior authorization determination within 30 minutes of the time when the issuer receives the request and the treating physician does not request under clause (ii) to communicate directly with an authorized physician concerning the denial. ``(ii) Request for direct physician-to-physician communication concerning denial.--If a denial of a request is communicated under clause (i), the treating physician may request to communicate respecting the denial directly with a physician who is authorized by the issuer to deny or affirm such a denial. ``(C) When no timely response to request for physician-to- physician communication.--If a request for physician-to- physician communication is made under subparagraph (B)(ii), the post-stabilization care requested is required to be covered under this subsection beginning 30 minutes after the time when the issuer receives the request from a treating physician unless a physician, who is authorized by the issuer to reverse or affirm the initial denial of the care, communicates (or makes a good faith effort to communicate) directly with the treating physician within such 30-minute period. ``(D) Disagreements over post-stabilization care.--If, after a direct physician-to-physician communication under subparagraph (C), the denial of the request for the post- stabilization care is not reversed and the treating physician communicates to the issuer involved a disagreement with such decision, the post-stabilization care requested is required to be covered under this subsection beginning as follows: ``(i) Delay to allow for prompt arrival of physician assuming responsibility.--If the issuer communicates that a physician (designated by the plan or issuer) with privileges at the hospital involved will arrive promptly (as determined under guidelines) at the emergency department of the hospital in order to assume responsibility with respect to the treatment of the enrollee involved, the required coverage of the post-stabilization care begins after the passage of such time period as would allow the prompt arrival of such a physician. ``(ii) Other cases.--If the issuer does not so communicate, the required coverage of the post-stabilization care begins immediately. ``(6) No requirement of coverage of post-stabilization care if alternate plan of treatment.-- ``(A) In general.--Coverage of post-stabilization care is not required under this subsection with respect to an individual when-- ``(i) subject to subparagraph (B), a physician (designated by the plan or issuer involved) and with privileges at the hospital involved arrives at the emergency department of the hospital and assumes responsibility with respect to the treatment of the individual; or ``(ii) the treating physician and the issuer agree to another arrangement with respect to the post-stabilization care (such as an appropriate transfer of the individual involved to another facility or an appointment for timely followup treatment for the individual). ``(B) Special rule where once care initiated.--Required coverage of requested post-stabilization care shall not end by reason of subparagraph (A)(i) during an episode of care (as determined by guidelines) if the treating physician initiated such care (consistent with a previous paragraph) before the arrival of a physician described in such subparagraph. ``(7) Construction.--Nothing in this subsection shall be construed as-- ``(A) preventing an issuer from authorizing coverage of maintenance care or post-stabilization care in advance or at any time; or ``(B) preventing a treating physician or other individual described in paragraph (1)(C) and an issuer from agreeing to modify any of the time periods specified in paragraphs (5) as it relates to cases involving such persons. ``(c) Limits on Cost-Sharing for Services Furnished in Emergency Departments.--If health insurance coverage provides any benefits with respect to emergency services, the health insurance issuer offering such coverage may impose cost sharing with respect to such services only if the following conditions are met: ``(1) Limitations on cost-sharing differential for nonparticipating providers.-- ``(A) No differential for certain services.--In the case of services furnished under the circumstances described in clause (i), (ii), or (iii) of subsection (a)(3)(B) (relating to circumstances beyond the control of the enrollee, the likelihood of an adverse health consequence based on layperson's judgment, and physician referral), the cost- sharing for such services provided by a nonparticipating provider or physician does not exceed the cost-sharing for such services provided by a participating provider or physician. ``(B) Only reasonable differential for other services.--In the case of other emergency services, any differential by which the cost-sharing for such services provided by a nonparticipating provider or physician exceeds the cost- sharing for such services provided by a participating provider or physician is reasonable (as determined under guidelines). ``(2) Only reasonable differential between emergency services and other services.--Any differential by which the cost-sharing for services furnished in an emergency department exceeds the cost-sharing for such services furnished in another setting is reasonable (as determined under guidelines). ``(3) Construction.--Nothing in paragraph (1)(B) or (2) shall be construed as authorizing guidelines other than guidelines that establish maximum cost-sharing differentials. ``(d) Information on Access to Emergency Services.--A health insurance issuer, to the extent a health insurance issuer offers health insurance coverage, shall provide education to enrollees on-- ``(1) coverage of emergency services (as defined in subsection (a)(2)(B)) by the issuer in accordance with the provisions of this section, ``(2) the appropriate use of emergency services, including use of the 911 telephone system or its local equivalent, ``(3) any cost sharing applicable to emergency services, ``(4) the process and procedures of the plan for obtaining emergency services, and ``(5) the locations of-- ``(A) emergency departments, and ``(B) other settings, in which participating physicians and hospitals provide emergency services and post-stabilization care. ``(e) General Definitions.--For purposes of this section: ``(1) Cost sharing.--The term `cost sharing' means any deductible, coinsurance amount, copayment or other out-of- pocket payment (other than premiums or enrollment fees) that a health insurance issuer offering health insurance issuer imposes on enrollees with respect to the coverage of benefits. ``(2) Good faith effort.--The term `good faith effort' has the meaning given such term in guidelines and requires such appropriate documentation as is specified under such guidelines. ``(3) Guidelines.--The term `guidelines' means guidelines established by the Secretary after consultation with an advisory panel that includes individuals representing emergency physicians, health insurance issuers, including at least one health maintenance organization, hospitals, employers, the States, and consumers. ``(4) Prior authorization determination.--The term `prior authorization determination' means, with respect to items and services for which coverage may be provided under health insurance coverage, a determination (before the provision of the items and services and as a condition of coverage of the items and services under the coverage) of whether or not such items and services will be covered under the coverage. ``(5) Stabilize.--The term `to stabilize' means, with respect to an emergency medical condition, to provide (in complying with section 1867 of the Social Security Act) such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from the facility. ``(6) Stabilized.--The term `stabilized' means, with respect to an emergency medical condition, that no material deterioration of the condition is likely, within reasonable medical probability, to result from or occur before an individual can be transferred from the facility, in compliance with the requirements of section 1867 of the Social Security Act. ``(7) Treating physician.--The term `treating physician' includes a treating health care professional who is licensed under State law to provide emergency services other than under the supervision of a physician. ``SEC. 2772. ACCESS TO SPECIALTY CARE. ``(a) Obstetrical and Gynecological Care.-- ``(1) In general.--If a health insurance issuer, in connection with the provision of health insurance coverage, requires or provides for an enrollee to designate a participating primary care provider-- ``(A) the issuer shall permit a female enrollee to designate a physician who specializes in obstetrics and gynecology as the enrollee's primary care provider; and ``(B) if such an enrollee has not designated such a provider as a primary care provider, the issuer-- ``(i) may not require prior authorization by the enrollee's primary care provider or otherwise for coverage of routine gynecological care (such as preventive women's health examinations) and pregnancy-related services provided by a participating physician who specializes in obstetrics and gynecology to [[Page S1741]] the extent such care is otherwise covered, and ``(ii) may treat the ordering of other gynecological care by such a participating physician as the prior authorization of the primary care provider with respect to such care under the coverage. ``(2) Construction.--Nothing in paragraph (1)(B)(ii) shall waive any requirements of coverage relating to medical necessity or appropriateness with respect to coverage of gynecological care so ordered. ``(b) Specialty Care.-- ``(1) Referral to specialty care for enrollees requiring treatment by specialists.-- ``(A) In general.--In the case of an enrollee who is covered under health insurance coverage offered by a health insurance issuer and who has a condition or disease of sufficient seriousness and complexity to require treatment by a specialist, the issuer shall make or provide for a referral to a specialist who is available and accessible to provide the treatment for such condition or disease. ``(B) Specialist defined.--For purposes of this subsection, the term `specialist' means, with respect to a condition, a health care practitioner, facility, or center (such as a center of excellence) that has adequate expertise through appropriate training and experience (including, in the case of a child, appropriate pediatric expertise) to provide high quality care in treating the condition. ``(C) Care under referral.--Care provided pursuant to such referral under subparagraph (A) shall be-- ``(i) pursuant to a treatment plan (if any) developed by the specialist and approved by the issuer, in consultation with the designated primary care provider or specialist and the enrollee (or the enrollee's designee), and ``(ii) in accordance with applicable quality assurance and utilization review standards of the issuer. Nothing in this subsection shall be construed as preventing such a treatment plan for an enrollee from requiring a specialist to provide the primary care provider with regular updates on the specialty care provided, as well as all necessary medical information. ``(D) Referrals to participating providers.--An issuer is not required under subparagraph (A) to provide for a referral to a specialist that is not a participating provider, unless the issuer does not have an appropriate specialist that is available and accessible to treat the enrollee's condition and that is a participating provider with respect to such treatment. ``(E) Treatment of nonparticipating providers.--If an issuer refers an enrollee to a nonparticipating specialist, services provided pursuant to the approved treatment plan shall be provided at no additional cost to the enrollee beyond what the enrollee would otherwise pay for