Amendment In The Nature Of A Substitute

AMENDMENT IN THE NATURE OF A SUBSTITUTE
TO H.R. llllllll
OFFERED BY MR. BOEHNER OF OHIO
(Amendment to text of H.R. 3962)
Strike all after the enacting clause and insert the
following:
1 SECTION 1. SHORT TITLE; PURPOSE; TABLE OF CONTENTS.
2 (a) SHORT TITLE.—This Act may be cited as the
3 ''Common Sense Health Care Reform and Affordability
4 Act''.
5 (b) PURPOSE.—The purpose of this Act is to take
6 meaningful steps to lower health care costs and increase
7 access to health insurance coverage (especially for individ8
uals with preexisting conditions) without—
9 (1) raising taxes;
10 (2) cutting Medicare benefits for seniors;
11 (3) adding to the national deficit;
12 (4) intervening in the doctor-patient relation13
ship; or
14 (5) instituting a government takeover of health
15 care.
16 (c) TABLE OF CONTENTS.—The table of contents of
17 this Act is as follows:
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Sec. 1. Short title; purpose; table of contents.
DIVISION A—MAKING HEALTH CARE COVERAGE AFFORDABLE
FOR EVERY AMERICAN
TITLE I—ENSURING COVERAGE FOR INDIVIDUALS WITH PREEXISTING
CONDITIONS AND MULTIPLE HEALTH CARE NEEDS
Sec. 101. Establish universal access programs to improve high risk pools and
reinsurance markets.
Sec. 102. Elimination of certain requirements for guaranteed availability in individual
market.
Sec. 103. No annual or lifetime spending caps.
Sec. 104. Preventing unjust cancellation of insurance coverage.
TITLE II—REDUCING HEALTH CARE PREMIUMS AND THE
NUMBER OF UNINSURED AMERICANS
Sec. 111. State innovation programs.
Sec. 112. Health plan finders.
Sec. 113. Administrative simplification.
DIVISION B—IMPROVING ACCESS TO HEALTH CARE
TITLE I—EXPANDING ACCESS AND LOWERING COSTS FOR SMALL
BUSINESSES
Sec. 201. Rules governing association health plans.
Sec. 202. Clarification of treatment of single employer arrangements.
Sec. 203. Enforcement provisions relating to association health plans.
Sec. 204. Cooperation between Federal and State authorities.
Sec. 205. Effective date and transitional and other rules.
TITLE II—TARGETED EFFORTS TO EXPAND ACCESS
Sec. 211. Extending coverage of dependents.
Sec. 212. Allowing auto-enrollment for employer sponsored coverage.
TITLE III—EXPANDING CHOICES BY ALLOWING AMERICANS TO
BUY HEALTH CARE COVERAGE ACROSS STATE LINES
Sec. 221. Interstate purchasing of Health Insurance.
TITLE IV—IMPROVING HEALTH SAVINGS ACCOUNTS
Sec. 231. Saver's credit for contributions to health savings accounts.
Sec. 232. HSA funds for premiums for high deductible health plans.
Sec. 233. Requiring greater coordination between HDHP administrators and
HSA account administrators so that enrollees can enroll in
both at the same time.
Sec. 234. Special rule for certain medical expenses incurred before establishment
of account.
DIVISION C—ENACTING REAL MEDICAL LIABILITY REFORM
Sec. 301. Encouraging speedy resolution of claims.
Sec. 302. Compensating patient injury.
Sec. 303. Maximizing patient recovery.
Sec. 304. Additional health benefits.
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Sec. 305. Punitive damages.
Sec. 306. Authorization of payment of future damages to claimants in health
care lawsuits.
Sec. 307. Definitions.
Sec. 308. Effect on other laws.
Sec. 309. State flexibility and protection of states' rights.
Sec. 310. Applicability; effective date.
DIVISION D—PROTECTING THE DOCTOR-PATIENT RELATIONSHIP
Sec. 401. Rule of construction.
Sec. 402. Repeal of Federal Coordinating Council for Comparative Effectiveness
Research.
DIVISION E—INCENTIVIZING WELLNESS AND QUALITY
IMPROVEMENTS
Sec. 501. Incentives for prevention and wellness programs.
DIVISION F—PROTECTING TAXPAYERS
Sec. 601. Provide full funding to HHS OIG and HCFAC.
Sec. 602. Prohibiting taxpayer funded abortions and conscience protections.
Sec. 603. Improved enforcement of the Medicare and Medicaid secondary payer
provisions.
Sec. 604. Strengthen Medicare provider enrollment standards and safeguards.
Sec. 605. Tracking banned providers across State lines.
DIVISION G—PATHWAY FOR BIOSIMILAR BIOLOGICAL PRODUCTS
Sec. 701. Licensure pathway for biosimilar biological products.
Sec. 702. Fees relating to biosimilar biological products.
Sec. 703. Amendments to certain patent provisions.
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1 DIVISION A—MAKING HEALTH
2 CARE COVERAGE AFFORD3
ABLE FOR EVERY AMERICAN
4 TITLE I—ENSURING COVERAGE
5 FOR INDIVIDUALS WITH PRE6
EXISTING CONDITIONS AND
7 MULTIPLE HEALTH CARE
8 NEEDS
9 SEC. 101. ESTABLISH UNIVERSAL ACCESS PROGRAMS TO
10 IMPROVE HIGH RISK POOLS AND REINSUR11
ANCE MARKETS.
12 (a) STATE REQUIREMENT.—
13 (1) IN GENERAL.—Not later than January 1,
14 2010, each State shall—
15 (A) subject to paragraph (3), operate—
16 (i) a qualified State reinsurance pro17
gram described in subsection (b); or
18 (ii) qualifying State high risk pool de19
scribed in subsection (c)(1); and
20 (B) subject to paragraph (3), apply to the
21 operation of such a program from State funds
22 an amount equivalent to the portion of State
23 funds derived from State premium assessments
24 (as defined by the Secretary) that are not oth25
erwise used on State health care programs.
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1 (2) RELATION TO CURRENT QUALIFIED HIGH
2 RISK POOL PROGRAM.—
3 (A) STATES NOT OPERATING A QUALIFIED
4 HIGH RISK POOL.—In the case of a State that
5 is not operating a current section 2745 quali6
fied high risk pool as of the date of the enact7
ment of this Act—
8 (i) the State may only meet the re9
quirement of paragraph (1) through the
10 operation of a qualified State reinsurance
11 program described in subsection (b); and
12 (ii) the State's operation of such a re13
insurance program shall be treated, for
14 purposes of section 2745 of the Public
15 Health Service Act, as the operation of a
16 qualified high risk pool described in such
17 section.
18 (B) STATE OPERATING A QUALIFIED HIGH
19 RISK POOL.—In the case of a State that is op20
erating a current section 2745 qualified high
21 risk pool as of the date of the enactment of this
22 Act—
23 (i) as of January 1, 2010, such a pool
24 shall not be treated as a qualified high risk
25 pool under section 2745 of the Public
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1 Health Service Act unless the pool is a
2 qualifying State high risk pool described in
3 subsection (c)(1); and
4 (ii) the State may use premium as5
sessment funds described in paragraph
6 (1)(B) to transition from operation of such
7 a pool to operation of a qualified State re8
insurance program described in subsection
9 (b).
10 (3) APPLICATION OF FUNDS.—If the program
11 or pool operated under paragraph (1)(A) is in strong
12 fiscal health, as determined in accordance with
13 standards established by the National Association of
14 Insurance Commissioners and as approved by the
15 State Insurance Commissioner involved, the require16
ment of paragraph (1)(B) shall be deemed to be
17 met.
18 (b) QUALIFIED STATE REINSURANCE PROGRAM.—
19 (1) IN GENERAL.—For purposes of this section,
20 a ''qualified State reinsurance program'' means a
21 program operated by a State program that provides
22 reinsurance for health insurance coverage offered in
23 the small group market in accordance with the
24 model for such a program established (as of the date
25 of the enactment of this Act).
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1 (2) FORM OF PROGRAM.—A qualified State re2
insurance program may provide reinsurance—
3 (A) on a prospective or retrospective basis;
4 and
5 (B) on a basis that protects health insur6
ance issuers against the annual aggregate
7 spending of their enrollees as well as purchase
8 protection against individual catastrophic costs.
9 (3) SATISFACTION OF HIPAA REQUIREMENT.—
10 A qualified State reinsurance program shall be
11 deemed, for purposes of section 2745 of the Public
12 Health Service Act, to be a qualified high-risk pool
13 under such section.
14 (c) QUALIFYING STATE HIGH RISK POOL.—
15 (1) IN GENERAL.—A qualifying State high risk
16 pool described in this subsection means a current
17 section 2745 qualified high risk pool that meets the
18 following requirements:
19 (A) The pool must provide at least two
20 coverage options, one of which must be a high
21 deductible health plan coupled with a health
22 savings account.
23 (B) The pool must be funded with a stable
24 funding source.
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1 (C) The pool must eliminate any waiting
2 lists so that all eligible residents who are seek3
ing coverage through the pool should be allowed
4 to receive coverage through the pool.
5 (D) The pool must allow for coverage of
6 individuals who, but for the 24-month disability
7 waiting period under section 226(b) of the So8
cial Security Act, would be eligible for Medicare
9 during the period of such waiting period.
10 (E) The pool must limit the pool premiums
11 to no more than 150 percent of the average
12 premium for applicable standard risk rates in
13 that State.
14 (F) The pool must conduct education and
15 outreach initiatives so that residents and bro16
kers understand that the pool is available to eli17
gible residents.
18 (G) The pool must provide coverage for
19 preventive services and disease management for
20 chronic diseases.
21 (2) VERIFICATION OF CITIZENSHIP OR ALIEN
22 QUALIFICATION.—
23 (A) IN GENERAL.—Notwithstanding any
24 other provision of law, only citizens and nation25
als of the United States shall be eligible to par-
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1 ticipate in a qualifying State high risk pool that
2 receives funds under section 2745 of the Public
3 Health Service Act or this section.
4 (B) CONDITION OF PARTICIPATION.—As a
5 condition of a State receiving such funds, the
6 Secretary shall require the State to certify, to
7 the satisfaction of the Secretary, that such
8 State requires all applicants for coverage in the
9 qualifying State high risk pool to provide satis10
factory documentation of citizenship or nation11
ality in a manner consistent with section
12 1903(x) of the Social Security Act.
13 (C) RECORDS.—The Secretary shall keep
14 sufficient records such that a determination of
15 citizenship or nationality only has to be made
16 once for any individual under this paragraph.
17 (3) RELATION TO SECTION 2745.—As of Janu18
ary 1, 2010, a pool shall not qualify as qualified
19 high risk pool under section 2745 of the Public
20 Health Service Act unless the pool is a qualifying
21 State high risk pool described in paragraph (1).
22 (d) WAIVERS.—In order to accommodate new and in23
novative programs, the Secretary may waive such require24
ments of this section for qualified State reinsurance pro-
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1 grams and for qualifying State high risk pools as the Sec2
retary deems appropriate.
3 (e) FUNDING.—In addition to any other amounts ap4
propriated, there is appropriated to carry out section 2745
5 of the Public Health Service Act (including through a pro6
gram or pool described in subsection (a)(1))—
7 (1) $15,000,000,000 for the period of fiscal
8 years 2010 through 2019; and
9 (2) an additional $10,000,000,000 for the pe10
riod of fiscal years 2015 through 2019.
11 (f) DEFINITIONS.—In this section:
12 (1) HEALTH INSURANCE COVERAGE; HEALTH
13 INSURANCE ISSUER.—The terms ''health insurance
14 coverage'' and ''health insurance issuer'' have the
15 meanings given such terms in section 2791 of the
16 Public Health Service Act.
17 (2) CURRENT SECTION 2745 QUALIFIED HIGH
18 RISK POOL.—The term ''current section 2745 quali19
fied high risk pool'' has the meaning given the term
20 ''qualified high risk pool'' under section 2745(g) of
21 the Public Health Service Act as in effect as of the
22 date of the enactment of this Act.
23 (3) SECRETARY.—The term ''Secretary'' means
24 Secretary of Health and Human Services.
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1 (4) STANDARD RISK RATE.—The term ''stand2
ard risk rate'' means a rate that—
3 (A) is determined under the State high
4 risk pool by considering the premium rates
5 charged by other health insurance issuers offer6
ing health insurance coverage to individuals in
7 the insurance market served;
8 (B) is established using reasonable actu9
arial techniques; and
10 (C) reflects anticipated claims experience
11 and expenses for the coverage involved.
12 (5) STATE.—The term ''State'' means any of
13 the 50 States or the District of Columbia.
14 SEC. 102. ELIMINATION OF CERTAIN REQUIREMENTS FOR
15 GUARANTEED AVAILABILITY IN INDIVIDUAL
16 MARKET.
17 (a) IN GENERAL.—Section 2741(b) of the Public
18 Health Service Act (42 U.S.C. 300gg–41(b)) is amend19
ed——
20 (1) in paragraph (1)—
21 (A) by striking ''(1)(A)'' and inserting
22 ''(1)''; and
23 (B) by striking ''and (B)'' and all that fol24
lows up to the semicolon at the end;
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1 (2) by adding ''and'' at the end of paragraph
2 (2);
3 (3) in paragraph (3)—
4 (A) by striking ''(1)(A)'' and inserting
5 ''(1)''; and
6 (B) by striking the semicolon at the end
7 and inserting a period; and
8 (4) by striking paragraphs (4) and (5).
9 (b) EFFECTIVE DATE.—The amendments made by
10 subsection (a) shall take effect on the date of the enact11
ment of this Act.
12 SEC. 103. NO ANNUAL OR LIFETIME SPENDING CAPS.
13 Notwithstanding any other provision of law, a health
14 insurance issuer (including an entity licensed to sell insur15
ance with respect to a State or group health plan) may
16 not apply an annual or lifetime aggregate spending cap
17 on any health insurance coverage or plan offered by such
18 issuer.
19 SEC. 104. PREVENTING UNJUST CANCELLATION OF INSUR20
ANCE COVERAGE.
21 (a) CLARIFICATION REGARDING APPLICATION OF
22 GUARANTEED RENEWABILITY OF INDIVIDUAL HEALTH
23 INSURANCE COVERAGE.—Section 2742 of the Public
24 Health Service Act (42 U.S.C. 300gg–42) is amended—
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1 (1) in its heading, by inserting '', CONTINU2
ATION IN FORCE, INCLUDING PROHIBITION OF
3 RESCISSION,'' after ''GUARANTEED RENEW4
ABILITY'';
5 (2) in subsection (a), by inserting '', including
6 without rescission,'' after ''continue in force''; and
7 (3) in subsection (b)(2), by inserting before the
8 period at the end the following: '', including inten9
tional concealment of material facts regarding a
10 health condition related to the condition for which
11 coverage is being claimed''.
12 (b) OPPORTUNITY FOR INDEPENDENT, EXTERNAL
13 THIRD PARTY REVIEW IN CERTAIN CASES.—Subpart 1
14 of part B of title XXVII of the Public Health Service Act
15 is amended by adding at the end the following new section:
16 ''SEC. 2746. OPPORTUNITY FOR INDEPENDENT, EXTERNAL
17 THIRD PARTY REVIEW IN CERTAIN CASES.
18 ''(a) NOTICE AND REVIEW RIGHT.—If a health in19
surance issuer determines to nonrenew or not continue in
20 force, including rescind, health insurance coverage for an
21 individual in the individual market on the basis described
22 in section 2742(b)(2) before such nonrenewal, discontinu23
ation, or rescission, may take effect the issuer shall pro24
vide the individual with notice of such proposed non25
renewal, discontinuation, or rescission and an opportunity
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1 for a review of such determination by an independent, ex2
ternal third party under procedures specified by the Sec3
retary.
4 ''(b) INDEPENDENT DETERMINATION.—If the indi5
vidual requests such review by an independent, external
6 third party of a nonrenewal, discontinuation, or rescission
7 of health insurance coverage, the coverage shall remain in
8 effect until such third party determines that the coverage
9 may be nonrenewed, discontinued, or rescinded under sec10
tion 2742(b)(2).''.
11 (c) EFFECTIVE DATE.—The amendments made by
12 this section shall apply after the date of the enactment
13 of this Act with respect to health insurance coverage
14 issued before, on, or after such date.
15 TITLE II—REDUCING HEALTH
16 CARE PREMIUMS AND THE
17 NUMBER OF UNINSURED
18 AMERICANS
19 SEC. 111. STATE INNOVATION PROGRAMS.
20 (a) PROGRAMS THAT REDUCE THE COST OF
21 HEALTH INSURANCE PREMIUMS.—
22 (1) PAYMENTS TO STATES.—
23 (A) FOR PREMIUM REDUCTIONS IN THE
24 SMALL GROUP MARKET.—If the Secretary de25
termines that a State has reduced the average
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1 per capita premium for health insurance cov2
erage in the small group market in year 3, in
3 year 6, or year 9 (as defined in subsection (c))
4 below the premium baseline for such year (as
5 defined paragraph (2)), the Secretary shall pay
6 the State an amount equal to the product of—
7 (i) bonus premium percentage (as de8
fined in paragraph (3)) for the State, mar9
ket, and year; and
10 (ii) the maximum State premium pay11
ment amount (as defined in paragraph (4))
12 for the State, market, and year
13 (B) FOR PREMIUM REDUCTIONS IN THE
14 INDIVIDUAL MARKET.—If the Secretary deter15
mines that a State has reduced the average per
16 capita premium for health insurance coverage
17 in the individual market in year 3, in year 6,
18 or in year 9 below the premium baseline for
19 such year, the Secretary shall pay the State an
20 amount equal to the product of—
21 (i) bonus premium percentage for the
22 State, market, and year; and
23 (ii) the maximum State premium pay24
ment amount for the State, market, and
25 year.
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1 (2) PREMIUM BASELINE.—For purposes of this
2 subsection, the term ''premium baseline'' means, for
3 a market in a State—
4 (A) for year 1, the average per capita pre5
miums for health insurance coverage in such
6 market in the State in such year; or
7 (B) for a subsequent year, the baseline for
8 the market in the State for the previous year
9 under this paragraph increased by a percentage
10 specified in accordance with a formula estab11
lished by the Secretary, in consultation with the
12 Congressional Budget Office and the Bureau of
13 the Census, that takes into account at least the
14 following:
15 (i) GROWTH FACTOR.—The inflation
16 in the costs of inputs to health care serv17
ices in the year.
18 (ii) HISTORIC PREMIUM GROWTH
19 RATES.—Historic growth rates, during the
20 10 years before year 1, of per capita pre21
miums for health insurance coverage.
22 (iii) DEMOGRAPHIC CONSIDER23
ATIONS.—Historic average changes in the
24 demographics of the population covered
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1 that impact on the rate of growth of per
2 capita health care costs.
3 (3) BONUS PREMIUM PERCENTAGE DEFINED.—
4 (A) IN GENERAL.—For purposes of this
5 subsection, the term ''bonus premium percent6
age'' means, for the small group market or indi7
vidual market in a State for a year, such per8
centage as determined in accordance with the
9 following table based on the State's premium
10 performance level (as defined in subparagraph
11 (B)) for such market and year:
The bonus
premium percentage
for a
State is—
For year 3 if the
premium performance
level of the
State is—
For year 6 if the
premium performance
level of the
State is—
For year 9 if the
premium performance
level of the
State is—
100 percent at least 8.5% at least 11% at least 13.5%
50 percent at least 6.38%,
but less than 8.5%
at least 10.38%,
but less than 11%
at least 12.88%,
but less than
13.5%
25 percent at least 4.25%,
but less than
6.38%
at least 9.75%,
but less than
10.38%
at least 12.25%,
but less than
12.88%
0 percent less than 4.25% less than 9.75% less than 12.25%
12 (B) PREMIUM PERFORMANCE LEVEL.—For
13 purposes of this subsection, the term ''premium
14 performance level'' means, for a State, market,
15 and year, the percentage reduction in the aver16
age per capita premiums for health insurance
17 coverage for the State, market, and year, as
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1 compared to the premium baseline for such
2 State, market, and year.
3 (4) MAXIMUM STATE PREMIUM PAYMENT
4 AMOUNT DEFINED.—For purposes of this sub5
section, the term ''maximum State premium pay6
ment amount'' means, for a State for the small
7 group market or the individual market for a year,
8 the product of—
9 (A) the proportion (as determined by the
10 Secretary), of the number of nonelderly individ11
uals lawfully residing in all the States who are
12 enrolled in health insurance coverage in the re13
spective market in the year, who are residents
14 of the State; and
15 (B) the amount available for obligation
16 from amounts appropriated under subsection
17 (d) for such market with respect to perform18
ance in such year.
19 (5) METHODOLOGY FOR CALCULATING AVER20
AGE PER CAPITA PREMIUMS.—
21 (A) ESTABLISHMENT.—The Secretary
22 shall establish, by rule and consistent with this
23 subsection, a methodology for computing the
24 average per capita premiums for health insur25
ance coverage for the small group market and
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1 for the individual market in each State for each
2 year beginning with year 1.
3 (B) ADJUSTMENTS.—Under such method4
ology, the Secretary shall provide for the fol5
lowing adjustments (in a manner determined
6 appropriate by the Secretary):
7 (i) EXCLUSION OF ILLEGAL ALIENS.—
8 An adjustment so as not to take into ac9
count enrollees who are not lawfully
10 present in the United States and their pre11
mium costs.
12 (ii) TREATING STATE PREMIUM SUB13
SIDIES AS PREMIUM COSTS.—An adjust14
ment so as to increase per capita pre15
miums to remove the impact of premium
16 subsidies made directly by a State to re17
duce health insurance premiums.
18 (6) CONDITIONS OF PAYMENT.—As a condition
19 of receiving a payment under paragraph (1), a State
20 must agree to submit aggregate, non-individually
21 identifiable data to the Secretary, in a form and
22 manner specified by the Secretary, for use by the
23 Secretary to determine the State's premium baseline
24 and premium performance level for purposes of this
25 subsection.
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