Health Insurance Portability and Accountability Act of 1996

H.R.3103

TITLE IV--APPLICATION AND ENFORCEMENT OF GROUP HEALTH PLAN REQUIREMENTS

Subtitle A--Application and Enforcement of Group Health Plan Requirements

SEC. 401. GROUP HEALTH PLAN PORTABILITY, ACCESS, AND RENEWABILITY REQUIREMENTS.

(a) IN GENERAL- The Internal Revenue Code of 1986 is amended by adding at the end the following new subtitle:

`Subtitle K--Group Health Plan Portability, Access, and Renewability Requirements

`Chapter 100. Group health plan portability, access, and renewability requirements.

`CHAPTER 100--GROUP HEALTH PLAN PORTABILITY, ACCESS, AND RENEWABILITY REQUIREMENTS

`Sec. 9801. Increased portability through limitation on preexisting condition exclusions.

`Sec. 9802. Prohibiting discrimination against individual participants and beneficiaries based on health status.

`Sec. 9803. Guaranteed renewability in multiemployer plans and certain multiple employer welfare arrangements.

`Sec. 9804. General exceptions.

`Sec. 9805. Definitions.

`Sec. 9806. Regulations.

`SEC. 9801. INCREASED PORTABILITY THROUGH LIMITATION ON PREEXISTING CONDITION EXCLUSIONS.

`(a) LIMITATION ON PREEXISTING CONDITION EXCLUSION PERIOD; CREDITING FOR PERIODS OF PREVIOUS COVERAGE- Subject to subsection (d), a group health plan may, with respect to a participant or beneficiary, impose a preexisting condition exclusion only if--

`(1) such exclusion relates to a condition (whether physical or mental), regardless of the cause of the condition, for which medical advice, diagnosis, care, or treatment was recommended or received within the 6-month period ending on the enrollment date;

`(2) such exclusion extends for a period of not more than 12 months (or 18 months in the case of a late enrollee) after the enrollment date; and

`(3) the period of any such preexisting condition exclusion is reduced by the length of the aggregate of the periods of creditable coverage (if any) applicable to the participant or beneficiary as of the enrollment date.

`(b) DEFINITIONS- For purposes of this section--

`(1) PREEXISTING CONDITION EXCLUSION-

`(A) IN GENERAL- The term `preexisting condition exclusion' means, with respect to coverage, a limitation or exclusion of benefits relating to a condition based on the fact that the condition was present before the date of enrollment for such coverage, whether or not any medical advice, diagnosis, care, or treatment was recommended or received before such date.

`(B) TREATMENT OF GENETIC INFORMATION- For purposes of this section, genetic information shall not be treated as a condition described in subsection (a)(1) in the absence of a diagnosis of the condition related to such information.

`(2) ENROLLMENT DATE- The term `enrollment date' means, with respect to an individual covered under a group health plan, the date of enrollment of the individual in the plan or, if earlier, the first day of the waiting period for such enrollment.

`(3) LATE ENROLLEE- The term `late enrollee' means, with respect to coverage under a group health plan, a participant or beneficiary who enrolls under the plan other than during--

`(A) the first period in which the individual is eligible to enroll under the plan, or

`(B) a special enrollment period under subsection (f).

`(4) WAITING PERIOD- The term `waiting period' means, with respect to a group health plan and an individual who is a potential participant or beneficiary in the plan, the period that must pass with respect to the individual before the individual is eligible to be covered for benefits under the terms of the plan.

`(c) RULES RELATING TO CREDITING PREVIOUS COVERAGE-

`(1) CREDITABLE COVERAGE DEFINED- For purposes of this part, the term `creditable coverage' means, with respect to an individual, coverage of the individual under any of the following:

`(A) A group health plan.

`(B) Health insurance coverage.

`(C) Part A or part B of title XVIII of the Social Security Act.

`(D) Title XIX of the Social Security Act, other than coverage consisting solely of benefits under section 1928.

`(E) Chapter 55 of title 10, United States Code.

`(F) A medical care program of the Indian Health Service or of a tribal organization.

`(G) A State health benefits risk pool.

`(H) A health plan offered under chapter 89 of title 5, United States Code.

`(I) A public health plan (as defined in regulations).

`(J) A health benefit plan under section 5(e) of the Peace Corps Act (22 U.S.C. 2504(e)).

Such term does not include coverage consisting solely of coverage of excepted benefits (as defined in section 9805(c)).

`(2) NOT COUNTING PERIODS BEFORE SIGNIFICANT BREAKS IN COVERAGE-

`(A) IN GENERAL- A period of creditable coverage shall not be counted, with respect to enrollment of an individual under a group health plan, if, after such period and before the enrollment date, there was a 63-day period during all of which the individual was not covered under any creditable coverage.

`(B) WAITING PERIOD NOT TREATED AS A BREAK IN COVERAGE- For purposes of subparagraph (A) and subsection (d)(4), any period that an individual is in a waiting period for any coverage under a group health plan or is in an affiliation period shall not be taken into account in determining the continuous period under subpara-graph (A).

`(C) AFFILIATION PERIOD-

`(i) IN GENERAL- For purposes of this section, the term `affiliation period' means a period which, under the terms of the health insurance coverage offered by the health maintenance organization, must expire before the health insurance coverage becomes effective. During such an affiliation period, the organization is not required to provide health care services or benefits and no premium shall be charged to the participant or beneficiary.

`(ii) BEGINNING- Such period shall begin on the enrollment date.

`(iii) RUNS CONCURRENTLY WITH WAITING PERIODS- Any such affiliation period shall run concurrently with any waiting period under the plan.

`(3) METHOD OF CREDITING COVERAGE-

`(A) STANDARD METHOD- Except as otherwise provided under subparagraph (B), for purposes of applying subsection (a)(3), a group health plan shall count a period of creditable coverage without regard to the specific benefits for which coverage is offered during the period.

`(B) ELECTION OF ALTERNATIVE METHOD- A group health plan may elect to apply subsection (a)(3) based on coverage of any benefits within each of several classes or categories of benefits specified in regulations rather than as provided under subparagraph (A). Such election shall be made on a uniform basis for all participants and beneficiaries. Under such election a group health plan shall count a period of creditable coverage with respect to any class or category of benefits if any level of benefits is covered within such class or category.

`(C) PLAN NOTICE- In the case of an election with respect to a group health plan under subparagraph (B), the plan shall--

`(i) prominently state in any disclosure statements concerning the plan, and state to each enrollee at the time of enrollment under the plan, that the plan has made such election, and

`(ii) include in such statements a description of the effect of this election.

`(4) ESTABLISHMENT OF PERIOD- Periods of creditable coverage with respect to an individual shall be established through presentation of certifications described in subsection (e) or in such other manner as may be specified in regulations.

`(d) EXCEPTIONS-

`(1) EXCLUSION NOT APPLICABLE TO CERTAIN NEWBORNS- Subject to paragraph (4), a group health plan may not impose any preexisting condition exclusion in the case of an individual who, as of the last day of the 30-day period beginning with the date of birth, is covered under creditable coverage.

`(2) EXCLUSION NOT APPLICABLE TO CERTAIN ADOPTED CHILDREN- Subject to paragraph (4), a group health plan may not impose any preexisting condition exclusion in the case of a child who is adopted or placed for adoption before attaining 18 years of age and who, as of the last day of the 30-day period beginning on the date of the adoption or placement for adoption, is covered under creditable coverage. The previous sentence shall not apply to coverage before the date of such adoption or placement for adoption.

`(3) EXCLUSION NOT APPLICABLE TO PREGNANCY- For purposes of this section, a group health plan may not impose any preexisting condition exclusion relating to pregnancy as a preexisting condition.

`(4) LOSS IF BREAK IN COVERAGE- Paragraphs (1) and (2) shall no longer apply to an individual after the end of the first 63-day period during all of which the individual was not covered under any creditable coverage.

`(e) CERTIFICATIONS AND DISCLOSURE OF COVERAGE-

`(1) REQUIREMENT FOR CERTIFICATION OF PERIOD OF CREDITABLE COVERAGE-

`(A) IN GENERAL- A group health plan shall provide the certification described in subparagraph (B)--

`(i) at the time an individual ceases to be covered under the plan or otherwise becomes covered under a COBRA continuation provision,

`(ii) in the case of an individual becoming covered under such a provision, at the time the individual ceases to be covered under such provision, and

`(iii) on the request on behalf of an individual made not later than 24 months after the date of cessation of the coverage described in clause (i) or (ii), whichever is later.

The certification under clause (i) may be provided, to the extent practicable, at a time consistent with notices required under any applicable COBRA continuation provision.

`(B) CERTIFICATION- The certification described in this subparagraph is a written certification of--

`(i) the period of creditable coverage of the individual under such plan and the coverage under such COBRA continuation provision, and

`(ii) the waiting period (if any) (and affiliation period, if applicable) imposed with respect to the individual for any coverage under such plan.

`(C) ISSUER COMPLIANCE- To the extent that medical care under a group health plan consists of health insurance coverage offered in connection with the plan, the plan is deemed to have satisfied the certification requirement under this paragraph if the issuer provides for such certification in accordance with this paragraph.

`(2) DISCLOSURE OF INFORMATION ON PREVIOUS BENEFITS-

`(A) IN GENERAL- In the case of an election described in subsection (c)(3)(B) by a group health plan, if the plan enrolls an individual for coverage under the plan and the individual provides a certification of coverage of the individual under paragraph (1)--

`(i) upon request of such plan, the entity which issued the certification provided by the individual shall promptly disclose to such requesting plan information on coverage of classes and categories of health benefits available under such entity's plan, and

`(ii) such entity may charge the requesting plan or issuer for the reasonable cost of disclosing such information.

`(3) REGULATIONS- The Secretary shall establish rules to prevent an entity's failure to provide information under paragraph (1) or (2) with respect to previous coverage of an individual from adversely affecting any subsequent coverage of the individual under another group health plan or health insurance coverage.

`(f) SPECIAL ENROLLMENT PERIODS-

`(1) INDIVIDUALS LOSING OTHER COVERAGE- A group health plan shall permit an employee who is eligible, but not enrolled, for coverage under the terms of the plan (or a dependent of such an employee if the dependent is eligible, but not enrolled, for coverage under such terms) to enroll for coverage under the terms of the plan if each of the following conditions is met:

`(A) The employee or dependent was covered under a group health plan or had health insurance coverage at the time coverage was previously offered to the employee or individual.

`(B) The employee stated in writing at such time that coverage under a group health plan or health insurance coverage was the reason for declining enrollment, but only if the plan sponsor (or the health insurance issuer offering health insurance coverage in connection with the plan) required such a statement at such time and provided the employee with notice of such requirement (and the consequences of such requirement) at such time.

`(C) The employee's or dependent's coverage described in subparagraph (A)--

`(i) was under a COBRA continuation provi-sion and the coverage under such provision was exhausted; or

`(ii) was not under such a provision and either the coverage was terminated as a result of loss of eligibility for the coverage (including as a result of legal separation, divorce, death, termination of employment, or reduction in the number of hours of employment) or employer contributions toward such coverage were terminated.

`(D) Under the terms of the plan, the employee requests such enrollment not later than 30 days after the date of exhaustion of coverage described in subparagraph (C)(i) or termination of coverage or employer contribution described in subparagraph (C)(ii).

`(2) FOR DEPENDENT BENEFICIARIES-

`(A) IN GENERAL- If--

`(i) a group health plan makes coverage available with respect to a dependent of an individual,

`(ii) the individual is a participant under the plan (or has met any waiting period applicable to becoming a participant under the plan and is eligible to be enrolled under the plan but for a failure to enroll during a previous enrollment period), and

`(iii) a person becomes such a dependent of the individual through marriage, birth, or adoption or placement for adoption,

the group health plan shall provide for a dependent special enrollment period described in subparagraph (B) during which the person (or, if not otherwise enrolled, the individual) may be enrolled under the plan as a dependent of the individual, and in the case of the birth or adoption of a child, the spouse of the individual may be enrolled as a dependent of the individual if such spouse is otherwise eligible for coverage.

`(B) DEPENDENT SPECIAL ENROLLMENT PERIOD- The dependent special enrollment period under this subparagraph shall be a period of not less than 30 days and shall begin on the later of--

`(i) the date dependent coverage is made avail-able, or

`(ii) the date of the marriage, birth, or adoption or placement for adoption (as the case may be) described in subparagraph (A)(iii).

`(C) NO WAITING PERIOD- If an individual seeks coverage of a dependent during the first 30 days of such a dependent special enrollment period, the coverage of the dependent shall become effective--

`(i) in the case of marriage, not later than the first day of the first month beginning after the date the completed request for enrollment is received;

`(ii) in the case of a dependent's birth, as of the date of such birth; or

`(iii) in the case of a dependent's adoption or placement for adoption, the date of such adoption or placement for adoption.

`SEC. 9802. PROHIBITING DISCRIMINATION AGAINST INDIVIDUAL PARTICIPANTS AND BENEFICIARIES BASED ON HEALTH STATUS.

`(a) IN ELIGIBILITY TO ENROLL-

`(1) IN GENERAL- Subject to paragraph (2), a group health plan may not establish rules for eligibility (including continued eligibility) of any individual to enroll under the terms of the plan based on any of the following factors in relation to the individual or a dependent of the individual:

`(A) Health status.

`(B) Medical condition (including both physical and mental illnesses).

`(C) Claims experience.

`(D) Receipt of health care.

`(E) Medical history.

`(F) Genetic information.

`(G) Evidence of insurability (including conditions arising out of acts of domestic violence).

`(H) Disability.

`(2) NO APPLICATION TO BENEFITS OR EXCLUSIONS- To the extent consistent with section 9801, paragraph (1) shall not be construed--

`(A) to require a group health plan to provide particular benefits (or benefits with respect to a specific procedure, treatment, or service) other than those provided under the terms of such plan; or

`(B) to prevent such a plan from establishing limitations or restrictions on the amount, level, extent, or nature of the benefits or coverage for similarly situated individuals enrolled in the plan or coverage.

`(3) CONSTRUCTION- For purposes of paragraph (1), rules for eligibility to enroll under a plan include rules defining any applicable waiting periods for such enrollment.

`(b) IN PREMIUM CONTRIBUTIONS-

`(1) IN GENERAL- A group health plan may not require any individual (as a condition of enrollment or continued enrollment under the plan) to pay a premium or contribution which is greater than such premium or contribution for a similarly situated individual enrolled in the plan on the basis of any factor described in subsection (a)(1) in relation to the individual or to an individual enrolled under the plan as a dependent of the individual.

`(2) CONSTRUCTION- Nothing in paragraph (1) shall be construed--

`(A) to restrict the amount that an employer may be charged for coverage under a group health plan; or

`(B) to prevent a group health plan from establishing premium discounts or rebates or modifying otherwise applicable copayments or deductibles in return for adherence to programs of health promotion and disease prevention.

`SEC. 9803. GUARANTEED RENEWABILITY IN MULTIEMPLOYER PLANS AND CERTAIN MULTIPLE EMPLOYER WELFARE ARRANGEMENTS.

`(a) IN GENERAL- A group health plan which is a multiemployer plan (as defined in section 414(f)) or which is a multiple employer welfare arrangement may not deny an employer continued access to the same or different coverage under such plan, other than--

`(1) for nonpayment of contributions;

`(2) for fraud or other intentional misrepresentation of material fact by the employer;

`(3) for noncompliance with material plan provisions;

`(4) because the plan is ceasing to offer any coverage in a geographic area;

`(5) in the case of a plan that offers benefits through a network plan, because there is no longer any individual enrolled through the employer who lives, resides, or works in the service area of the network plan and the plan applies this paragraph uniformly without regard to the claims experience of employers or a factor described in section 9802(a)(1) in relation to such individuals or their dependents; or

`(6) for failure to meet the terms of an applicable collective bargaining agreement, to renew a collective bargaining or other agreement requiring or authorizing contributions to the plan, or to employ employees covered by such an agreement.

`(b) MULTIPLE EMPLOYER WELFARE ARRANGEMENT- For purposes of subsection (a), the term `multiple employer welfare arrangement' has the meaning given such term by section 3(40) of the Employee Retirement Income Security Act of 1974, as in effect on the date of the enactment of this section.

`SEC. 9804. GENERAL EXCEPTIONS.

`(a) EXCEPTION FOR CERTAIN PLANS- The requirements of this chapter shall not apply to--

`(1) any governmental plan, and

`(2) any group health plan for any plan year if, on the first day of such plan year, such plan has less than 2 participants who are current employees.

`(b) EXCEPTION FOR CERTAIN BENEFITS- The requirements of this chapter shall not apply to any group health plan in relation to its provision of excepted benefits described in section 9805(c)(1).

`(c) EXCEPTION FOR CERTAIN BENEFITS IF CERTAIN CONDITIONS MET-

`(1) LIMITED, EXCEPTED BENEFITS- The requirements of this chapter shall not apply to any group health plan in relation to its provision of excepted benefits described in section 9805(c)(2) if the benefits--

`(A) are provided under a separate policy, certificate, or contract of insurance; or

`(B) are otherwise not an integral part of the plan.

`(2) NONCOORDINATED, EXCEPTED BENEFITS- The requirements of this chapter shall not apply to any group health plan in relation to its provision of excepted benefits described in section 9805(c)(3) if all of the following conditions are met:

`(A) The benefits are provided under a separate policy, certificate, or contract of insurance.

`(B) There is no coordination between the provision of such benefits and any exclusion of benefits under any group health plan maintained by the same plan sponsor.

`(C) Such benefits are paid with respect to an event without regard to whether benefits are provided with respect to such an event under any group health plan maintained by the same plan sponsor.

`(3) SUPPLEMENTAL EXCEPTED BENEFITS- The requirements of this chapter shall not apply to any group health plan in relation to its provision of excepted benefits described in section 9805(c)(4) if the benefits are provided under a separate policy, certificate, or contract of insurance.

`SEC. 9805. DEFINITIONS.

`(a) GROUP HEALTH PLAN- For purposes of this chapter, the term `group health plan' has the meaning given to such term by section 5000(b)(1).

`(b) DEFINITIONS RELATING TO HEALTH INSURANCE- For purposes of this chapter--

`(1) HEALTH INSURANCE COVERAGE-

`(A) IN GENERAL- Except as provided in subparagraph (B), the term `health insurance coverage' means benefits consisting of medical care (provided directly, through insurance or reimbursement, or otherwise) under any hospital or medical service policy or certificate, hospital or medical service plan contract, or health maintenance organization contract offered by a health insurance issuer.

`(B) NO APPLICATION TO CERTAIN EXCEPTED BENEFITS- In applying subparagraph (A), excepted benefits described in subsection (c)(1) shall not be treated as benefits consisting of medical care.

`(2) HEALTH INSURANCE ISSUER- The term `health insurance issuer' means an insurance company, insurance service, or insurance organization (including a health maintenance organization, as defined in paragraph (3)) which is licensed to engage in the business of insurance in a State and which is subject to State law which regulates insurance (within the meaning of section 514(b)(2) of the Employee Retirement Income Security Act of 1974, as in effect on the date of the enactment of this section). Such term does not include a group health plan.

`(3) HEALTH MAINTENANCE ORGANIZATION- The term `health maintenance organization' means--

`(A) a federally qualified health maintenance organization (as defined in section 1301(a) of the Public Health Service Act (42 U.S.C. 300e(a))),

`(B) an organization recognized under State law as a health maintenance organization, or

`(C) a similar organization regulated under State law for solvency in the same manner and to the same extent as such a health maintenance organization.

`(c) EXCEPTED BENEFITS- For purposes of this chapter, the term `excepted benefits' means benefits under one or more (or any combination thereof) of the following:

`(1) BENEFITS NOT SUBJECT TO REQUIREMENTS-

`(A) Coverage only for accident, or disability income insurance, or any combination thereof.

`(B) Coverage issued as a supplement to liability in-surance.

`(C) Liability insurance, including general liability insurance and automobile liability insurance.

`(D) Workers' compensation or similar insurance.

`(E) Automobile medical payment insurance.

`(F) Credit-only insurance.

`(G) Coverage for on-site medical clinics.

`(H) Other similar insurance coverage, specified in regulations, under which benefits for medical care are secondary or incidental to other insurance benefits.

`(2) BENEFITS NOT SUBJECT TO REQUIREMENTS IF OFFERED SEPARATELY-

`(A) Limited scope dental or vision benefits.

`(B) Benefits for long-term care, nursing home care, home health care, community-based care, or any combination thereof.

`(C) Such other similar, limited benefits as are specified in regulations.

`(3) BENEFITS NOT SUBJECT TO REQUIREMENTS IF OFFERED AS INDEPENDENT, NONCOORDINATED BENEFITS-

`(A) Coverage only for a specified disease or illness.

`(B) Hospital indemnity or other fixed indemnity in-surance.

`(4) BENEFITS NOT SUBJECT TO REQUIREMENTS IF OFFERED AS SEPARATE INSURANCE POLICY- Medicare supplemental health insurance (as defined under section 1882(g)(1) of the Social Security Act), coverage supplemental to the coverage provided under chapter 55 of title 10, United States Code, and similar supplemental coverage provided to coverage under a group health plan.

`(d) OTHER DEFINITIONS- For purposes of this chapter--

`(1) COBRA CONTINUATION PROVISION- The term `COBRA continuation provision' means any of the following:

`(A) Section 4980B, other than subsection (f)(1) thereof insofar as it relates to pediatric vaccines.

`(B) Part 6 of subtitle B of title I of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1161 et seq.), other than section 609 of such Act.

`(C) Title XXII of the Public Health Service Act.

`(2) GOVERNMENTAL PLAN- The term `governmental plan' has the meaning given such term by section 414(d).

`(3) MEDICAL CARE- The term `medical care' has the meaning given such term by section 213(d) determined without regard to--

`(A) paragraph (1)(C) thereof, and

`(B) so much of paragraph (1)(D) thereof as relates to qualified long-term care insurance.

`(4) NETWORK PLAN- The term `network plan' means health insurance coverage of a health insurance issuer under which the financing and delivery of medical care are provided, in whole or in part, through a defined set of providers under contract with the issuer.

`(5) PLACED FOR ADOPTION DEFINED- The term `placement', or being `placed', for adoption, in connection with any placement for adoption of a child with any person, means the assumption and retention by such person of a legal obligation for total or partial support of such child in anticipation of adoption of such child. The child's placement with such person terminates upon the termination of such legal obligation.

`SEC. 9806. REGULATIONS.

`The Secretary, consistent with section 104 of the Health Care Portability and Accountability Act of 1996, may promulgate such regulations as may be necessary or appropriate to carry out the provisions of this chapter. The Secretary may promulgate any interim final rules as the Secretary determines are appropriate to carry out this chapter.'.

(b) CLERICAL AMENDMENT- The table of subtitles of such Code is amended by adding at the end the following new item:

`Subtitle K. Group health plan portability, access, and renewability requirements.'.

(c) EFFECTIVE DATE-

(1) IN GENERAL- The amendments made by this section shall apply to plan years beginning after June 30, 1997.

(2) DETERMINATION OF CREDITABLE COVERAGE-

(A) PERIOD OF COVERAGE-

(i) IN GENERAL- Subject to clause (ii), no period before July 1, 1996, shall be taken into account under chapter 100 of the Internal Revenue Code of 1986 (as added by this section) in determining creditable coverage.

(ii) SPECIAL RULE FOR CERTAIN PERIODS- The Secretary of the Treasury, consistent with section 104, shall provide for a process whereby individuals who need to establish creditable coverage for periods before July 1, 1996, and who would have such coverage credited but for clause (i) may be given credit for creditable coverage for such periods through the presentation of documents or other means.

(B) CERTIFICATIONS, ETC-

(i) IN GENERAL- Subject to clauses (ii) and (iii), subsection (e) of section 9801 of the Internal Revenue Code of 1986 (as added by this section) shall apply to events occurring after June 30, 1996.

(ii) NO CERTIFICATION REQUIRED TO BE PROVIDED BEFORE JUNE 1, 1997- In no case is a certification required to be provided under such subsection before June 1, 1997.

(iii) CERTIFICATION ONLY ON WRITTEN REQUEST FOR EVENTS OCCURRING BEFORE OCTOBER 1, 1996- In the case of an event occurring after June 30, 1996, and before October 1, 1996, a certification is not required to be provided under such subsection unless an individual (with respect to whom the certification is otherwise required to be made) requests such certification in writing.

(C) TRANSITIONAL RULE- In the case of an individual who seeks to establish creditable coverage for any period for which certification is not required because it relates to an event occurring before June 30, 1996--

(i) the individual may present other credible evidence of such coverage in order to establish the period of creditable coverage; and

(ii) a group health plan and a health insurance issuer shall not be subject to any penalty or enforcement action with respect to the plan's or issuer's crediting (or not crediting) such coverage if the plan or issuer has sought to comply in good faith with the applicable requirements under the amendments made by this section.

(3) SPECIAL RULE FOR COLLECTIVE BARGAINING AGREEMENTS- Except as provided in paragraph (2), in the case of a group health plan maintained pursuant to 1 or more collective bargaining agreements between employee representatives and one or more employers ratified before the date of the enactment of this Act, the amendments made by this section shall not apply to plan years beginning before the later of--

(A) the date on which the last of the collective bargaining agreements relating to the plan terminates (determined without regard to any extension thereof agreed to after the date of the enactment of this Act), or

(B) July 1, 1997.

For purposes of subparagraph (A), any plan amendment made pursuant to a collective bargaining agreement relating to the plan which amends the plan solely to conform to any requirement added by this section shall not be treated as a termination of such collective bargaining agreement.

(4) TIMELY REGULATIONS- The Secretary of the Treasury, consistent with section 104, shall first issue by not later than April 1, 1997, such regulations as may be necessary to carry out the amendments made by this section.

(5) LIMITATION ON ACTIONS- No enforcement action shall be taken, pursuant to the amendments made by this section, against a group health plan or health insurance issuer with respect to a violation of a requirement imposed by such amendments before January 1, 1998, or, if later, the date of issuance of regulations referred to in paragraph (4), if the plan or issuer has sought to comply in good faith with such requirements.

SEC. 402. PENALTY ON FAILURE TO MEET CERTAIN GROUP HEALTH PLAN REQUIREMENTS.

(a) IN GENERAL- Chapter 43 of the Internal Revenue Code of 1986 (relating to qualified pension, etc., plans) is amended by adding after section 4980C the following new section:

`SEC. 4980D. FAILURE TO MEET CERTAIN GROUP HEALTH PLAN REQUIREMENTS.

`(a) GENERAL RULE- There is hereby imposed a tax on any failure of a group health plan to meet the requirements of chapter 100 (relating to group health plan portability, access, and renewability requirements).

`(b) AMOUNT OF TAX-

`(1) IN GENERAL- The amount of the tax imposed by subsection (a) on any failure shall be $100 for each day in the noncompliance period with respect to each individual to whom such failure relates.

`(2) NONCOMPLIANCE PERIOD- For purposes of this section, the term `noncompliance period' means, with respect to any failure, the period--

`(A) beginning on the date such failure first occurs, and

`(B) ending on the date such failure is corrected.

`(3) MINIMUM TAX FOR NONCOMPLIANCE PERIOD WHERE FAILURE DISCOVERED AFTER NOTICE OF EXAMINATION- Notwithstanding paragraphs (1) and (2) of subsection (c)--

`(A) IN GENERAL- In the case of 1 or more failures with respect to an individual--

`(i) which are not corrected before the date a notice of examination of income tax liability is sent to the employer, and

`(ii) which occurred or continued during the period under examination,

the amount of tax imposed by subsection (a) by reason of such failures with respect to such individual shall not be less than the lesser of $2,500 or the amount of tax which would be imposed by subsection (a) without regard to such paragraphs.

`(B) HIGHER MINIMUM TAX WHERE VIOLATIONS ARE MORE THAN DE MINIMIS- To the extent violations for which any person is liable under subsection (e) for any year are more than de minimis, subparagraph (A) shall be applied by substituting `$15,000' for `$2,500' with respect to such person.

`(C) EXCEPTION FOR CHURCH PLANS- This paragraph shall not apply to any failure under a church plan (as defined in section 414(e)).

`(c) LIMITATIONS ON AMOUNT OF TAX-

`(1) TAX NOT TO APPLY WHERE FAILURE NOT DISCOVERED EXERCISING REASONABLE DILIGENCE- No tax shall be imposed by subsection (a) on any failure during any period for which it is established to the satisfaction of the Secretary that the person otherwise liable for such tax did not know, and exercising reasonable diligence would not have known, that such failure existed.

`(2) TAX NOT TO APPLY TO FAILURES CORRECTED WITHIN CERTAIN PERIODS- No tax shall be imposed by subsection (a) on any failure if--

`(A) such failure was due to reasonable cause and not to willful neglect, and

`(B)(i) in the case of a plan other than a church plan (as defined in section 414(e)), such failure is corrected during the 30-day period beginning on the first date the person otherwise liable for such tax knew, or exercising reasonable diligence would have known, that such failure existed, and

`(ii) in the case of a church plan (as so defined), such failure is corrected before the close of the correction period (determined under the rules of section 414(e)(4)(C)).

`(3) OVERALL LIMITATION FOR UNINTENTIONAL FAILURES- In the case of failures which are due to reasonable cause and not to willful neglect--

`(A) SINGLE EMPLOYER PLANS-

`(i) IN GENERAL- In the case of failures with respect to plans other than specified multiple employer health plans, the tax imposed by subsection (a) for failures during the taxable year of the employer shall not exceed the amount equal to the lesser of--

`(I) 10 percent of the aggregate amount paid or incurred by the employer (or predecessor employer) during the preceding taxable year for group health plans, or

`(II) $500,000.

`(ii) TAXABLE YEARS IN THE CASE OF CERTAIN CONTROLLED GROUPS- For purposes of this subparagraph, if not all persons who are treated as a single employer for purposes of this section have the same taxable year, the taxable years taken into account shall be determined under principles similar to the principles of section 1561.

`(B) SPECIFIED MULTIPLE EMPLOYER HEALTH PLANS-

`(i) IN GENERAL- In the case of failures with respect to a specified multiple employer health plan, the tax imposed by subsection (a) for failures during the taxable year of the trust forming part of such plan shall not exceed the amount equal to the lesser of--

`(I) 10 percent of the amount paid or incurred by such trust during such taxable year to provide medical care (as defined in section 9805(d)(3)) directly or through insurance, reimbursement, or otherwise, or

`(II) $500,000.

For purposes of the preceding sentence, all plans of which the same trust forms a part shall be treated as one plan.

`(ii) SPECIAL RULE FOR EMPLOYERS REQUIRED TO PAY TAX- If an employer is assessed a tax imposed by subsection (a) by reason of a failure with respect to a specified multiple employer health plan, the limit shall be determined under subparagraph (A) (and not under this subparagraph) and as if such plan were not a specified multiple employer health plan.

`(4) WAIVER BY SECRETARY- In the case of a failure which is due to reasonable cause and not to willful neglect, the Secretary may waive part or all of the tax imposed by subsection (a) to the extent that the payment of such tax would be excessive relative to the failure involved.

`(d) TAX NOT TO APPLY TO CERTAIN INSURED SMALL EMPLOYER PLANS-

`(1) IN GENERAL- In the case of a group health plan of a small employer which provides health insurance coverage solely through a contract with a health insurance issuer, no tax shall be imposed by this section on the employer on any failure which is solely because of the health insurance coverage offered by such issuer.

`(2) SMALL EMPLOYER-

`(A) IN GENERAL- For purposes of paragraph (1), the term `small employer' means, with respect to a calendar year and a plan year, an employer who employed an average of at least 2 but not more than 50 employees on business days during the preceding calendar year and who employs at least 2 employees on the first day of the plan year. For purposes of the preceding sentence, all persons treated as a single employer under subsection (b), (c), (m), or (o) of section 414 shall be treated as one employer.

`(B) EMPLOYERS NOT IN EXISTENCE IN PRECEDING YEAR- In the case of an employer which was not in existence throughout the preceding calendar year, the determination of whether such employer is a small employer shall be based on the average number of employees that it is reasonably expected such employer will employ on business days in the current calendar year.

`(C) PREDECESSORS- Any reference in this paragraph to an employer shall include a reference to any predecessor of such employer.

`(3) HEALTH INSURANCE COVERAGE; HEALTH INSURANCE ISSUER- For purposes of paragraph (1), the terms `health insurance coverage' and `health insurance issuer' have the respective meanings given such terms by section 9805.

`(e) LIABILITY FOR TAX- The following shall be liable for the tax imposed by subsection (a) on a failure:

`(1) Except as otherwise provided in this subsection, the employer.

`(2) In the case of a multiemployer plan, the plan.

`(3) In the case of a failure under section 9803 (relating to guaranteed renewability) with respect to a plan described in subsection (f)(2)(B), the plan.

`(f) DEFINITIONS- For purposes of this section--

`(1) GROUP HEALTH PLAN- The term `group health plan' has the meaning given such term by section 9805(a).

`(2) SPECIFIED MULTIPLE EMPLOYER HEALTH PLAN- The term `specified multiple employer health plan' means a group health plan which is--

`(A) any multiemployer plan, or

`(B) any multiple employer welfare arrangement (as defined in section 3(40) of the Employee Retirement Income Security Act of 1974, as in effect on the date of the enactment of this section).

`(3) CORRECTION- A failure of a group health plan shall be treated as corrected if--

`(A) such failure is retroactively undone to the extent possible, and

`(B) the person to whom the failure relates is placed in a financial position which is as good as such person would have been in had such failure not occurred.'.

(b) CLERICAL AMENDMENT- The table of sections for chapter 43 of such Code is amended by adding after the item relating to section 4980C the following new item:

`Sec. 4980D. Failure to meet certain group health plan requirements.'.

(c) EFFECTIVE DATE- The amendments made by this section shall apply to failures under chapter 100 of the Internal Revenue Code of 1986 (as added by section 401 of this Act).

Subtitle B--Clarification of Certain Continuation Coverage Requirements

SEC. 421. COBRA CLARIFICATIONS.

(a) PUBLIC HEALTH SERVICE ACT-

(1) PERIOD OF COVERAGE- Section 2202(2) of the Public Health Service Act (42 U.S.C. 300bb-2(2)) is amended--

(A) in subparagraph (A)--

(i) by transferring the sentence immediately preceding clause (iv) so as to appear immediately following such clause (iv); and

(ii) in the last sentence (as so transferred)--

(I) by striking `an individual' and inserting `a qualified beneficiary';

(II) by striking `at the time of a qualifying event described in section 2203(2)' and inserting `at any time during the first 60 days of continuation coverage under this title';

(III) by striking `with respect to such event,'; and

(IV) by inserting `(with respect to all qualified beneficiaries)' after `29 months';

(B) in subparagraph (D)(i), by inserting before `, or' the following: `(other than such an exclusion or limitation which does not apply to (or is satisfied by) such beneficiary by reason of chapter 100 of the Internal Revenue Code of 1986, part 7 of subtitle B of title I of the Employee Retirement Income Security Act of 1974, or title XXVII of this Act)'; and

(C) in subparagraph (E), by striking `at the time of a qualifying event described in section 2203(2)' and inserting `at any time during the first 60 days of continuation coverage under this title'.

(2) NOTICES- Section 2206(3) of the Public Health Service Act (42 U.S.C. 300bb-6(3)) is amended by striking `at the time of a qualifying event described in section 2203(2)' and inserting `at any time during the first 60 days of continuation coverage under this title'.

(3) BIRTH OR ADOPTION OF A CHILD- Section 2208(3)(A) of the Public Health Service Act (42 U.S.C. 300bb-8(3)(A)) is amended by adding at the end thereof the following new flush sentence:

`Such term shall also include a child who is born to or placed for adoption with the covered employee during the period of continuation coverage under this title.'.

(b) EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974-

(1) PERIOD OF COVERAGE- Section 602(2) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1162(2)) is amended--

(A) in the last sentence of subparagraph (A)--

(i) by striking `an individual' and inserting `a qualified beneficiary';

(ii) by striking `at the time of a qualifying event described in section 603(2)' and inserting `at any time during the first 60 days of continuation coverage under this part';

(iii) by striking `with respect to such event'; and

(iv) by inserting `(with respect to all qualified beneficiaries)' after `29 months';

(B) in subparagraph (D)(i), by inserting before `, or' the following: `(other than such an exclusion or limitation which does not apply to (or is satisfied by) such beneficiary by reason of chapter 100 of the Internal Revenue Code of 1986, part 7 of this subtitle, or title XXVII of the Public Health Service Act)'; and

(C) in subparagraph (E), by striking `at the time of a qualifying event described in section 603(2)' and inserting `at any time during the first 60 days of continuation coverage under this part'.

(2) NOTICES- Section 606(a)(3) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1166(a)(3)) is amended by striking `at the time of a qualifying event described in section 603(2)' and inserting `at any time during the first 60 days of continuation coverage under this part'.

(3) BIRTH OR ADOPTION OF A CHILD- Section 607(3)(A) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1167(3)) is amended by adding at the end thereof the following new flush sentence:

`Such term shall also include a child who is born to or placed for adoption with the covered employee during the period of continuation coverage under this part.'.

(c) INTERNAL REVENUE CODE OF 1986-

(1) PERIOD OF COVERAGE- Section 4980B(f)(2)(B) of the Internal Revenue Code of 1986 is amended--

(A) in the last sentence of clause (i)--

(i) by striking `at the time of a qualifying event described in paragraph (3)(B)' and inserting `at any time during the first 60 days of continuation coverage under this section';

(ii) by striking `with respect to such event'; and

(iii) by inserting `(with respect to all qualified beneficiaries)' after `29 months';

(B) in clause (iv)(I), by inserting before `, or' the following: `(other than such an exclusion or limitation which does not apply to (or is satisfied by) such beneficiary by reason of chapter 100 of this title, part 7 of subtitle B of title I of the Employee Retirement Income Security Act of 1974, or title XXVII of the Public Health Service Act)'; and

(C) in clause (v), by striking `at the time of a qualifying event described in paragraph (3)(B)' and inserting `at any time during the first 60 days of continuation coverage under this section'.

(2) NOTICES- Section 4980B(f)(6)(C) of the Internal Revenue Code of 1986 is amended by striking `at the time of a qualifying event described in paragraph (3)(B)' and inserting `at any time during the first 60 days of continuation coverage under this section'.

(3) BIRTH OR ADOPTION OF A CHILD- Section 4980B(g)(1)(A) of the Internal Revenue Code of 1986 is amended by adding at the end thereof the following new flush sentence:

`Such term shall also include a child who is born to or placed for adoption with the covered employee during the period of continuation coverage under this section.'.

(d) EFFECTIVE DATE- The amendments made by this section shall become effective on January 1, 1997, regardless of whether the qualifying event occurred before, on, or after such date.

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