H. R. 6097
IN THE HOUSE OF REPRESENTATIVES
June 13, 2018
Ms. Jayapal (for herself, Ms. Schakowsky, and Mr. Pocan) introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committees on Ways and Means, Oversight and Government Reform, Armed Services, and Education and the Workforce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
To amend title I of the Patient Protection and Affordable Care Act to authorize the establishment of, and provide support for, State-based universal health care systems that provide comprehensive health benefits to State residents, and for other purposes.
Short title; purpose
This Act may be cited as the
State-Based Universal Health Care Act of 2018.
The purpose of this Act is to establish a flexible framework under which States can provide comprehensive universal health coverage to all of their residents.
Waiver for State universal health care
Title I of the Patient Protection and Affordable Care Act (Public Law 111–148) is amended by striking section 1332 (42 U.S.C. 18052) and inserting the following new section:
Waiver for State universal health care
A State may apply to the Secretary (as defined in subsection (i)(3)) for the waiver of so much of the requirements described in paragraph (2) with respect to health benefits coverage within that State for plan years beginning on or after January 1, 2019, as is necessary to implement a comprehensive State universal health care plan in the State under this section. Such application shall—
be filed at such time and in such manner as the Secretary may require;
contain such information as the Secretary may require, including—
a comprehensive description of the State legislation and program to implement a plan meeting the requirements for a waiver under this section;
a plan for how the State will achieve in 5 years health coverage for at least 95 percent of the population of the State, with five percent of the population of the State not spending more than 10 percent of their adjusted gross income on health; and
a 10-fiscal-year budget plan for such plan that is budget neutral for the Federal Government; and
provide an assurance that the State has enacted, or will be enacting before the current State legislative session adjourns, the law described in subsection (b)(2).
The requirements described in this paragraph with respect to health benefits coverage within the State for plan years beginning on or after January 1, 2019, are as follows:
Parts I, II, and III of this subtitle.
Sections 36B and 4980H of the Internal Revenue Code of 1986.
Title XI of the Social Security Act.
Title XVIII of the Social Security Act.
Title XIX of the Social Security Act.
Title XXI of the Social Security Act.
Chapter 89 of title 5 of the United States Code.
Chapter 55 of title 10, United States Code, including coverage under the TRICARE program.
Section 514 of the Employee Retirement Income Security Act of 1974.
Pass through of funding
With respect to a State waiver under paragraph (1), under which the State assumes responsibility for health coverage under a specified Federal health program, including under each of the Federal health care or subsidy programs specified in subparagraphs (B), (C), (E), (F), (G), and (H) of paragraph (2), the Secretary shall not spend Federal health funds that would otherwise have been spent for such program and shall provide for an alternative means by which the aggregate amount of such funds shall be paid to the State for purposes of implementing the State plan under the waiver. Such amount shall be determined annually by the Secretary, taking into account the amount that would otherwise have been spent under such Federal health program with respect to residents of such State, if such waiver did not apply. Such amount shall include funds equal to the amount of premium tax credits, cost-sharing reductions, or small-business credits under sections 36B and 45R of the Internal Revenue Code of 1986 or under section 1402 that would have been available to individuals and businesses in the State if such waiver did not apply.
Waiver consideration and transparency
An application for a waiver under this section shall be considered by the Secretary, after taking into account recommendations of the Panel under subsection (g), in accordance with the regulations described in subparagraph (B).
Not later than 180 days after the date of enactment of the State-Based Universal Health Care Act of 2017, the Secretary shall promulgate regulations relating to waivers under this section that provide—
a process for public notice and comment in accordance with the public notice and comment requirements applicable under regulations used for Medicaid waivers pursuant to section 1115 of the Social Security Act;
a process for the submission of an application that ensures the disclosure of—
the provisions of law that the State involved seeks to waive; and
the specific plans of the State to ensure that the waiver will be in compliance with subsection (b);
a process for providing public notice and comment after the application is received by the Secretary, that is sufficient to ensure a meaningful level of public input and that does not impose requirements that are in addition to, or duplicative of, requirements imposed under the Administrative Procedure Act, or requirements that are unreasonable or unnecessarily burdensome with respect to State compliance;
a process for the Panel under subsection (g) to consider the applications for waivers so submitted and provide recommendations with respect to such applications;
a process for the submission to the Secretary of periodic reports by the State concerning the implementation of the program under the waiver;
a process for the periodic evaluation by the Secretary with respect to waivers granted under this section; and
a process for providing technical assistance on—
how to develop an application to any State seeking to submit an application for a waiver relating to developing a program of providing health care for all residents for such State; and
how to improve such a program for purposes of a State seeking assistance pursuant to subsection (e)(2).
The Secretary shall annually report to Congress concerning actions taken by the Secretary with respect to applications for waivers, and programs conducted through waivers granted, under this section. Each such report shall include, with respect to any action by the Secretary so taken, with respect to an application, that was not consistent with the recommendations of the Panel under subsection (g), with respect to such application, the reasons such action was taken.
Regional waiver request and plan
Nothing in this section shall be construed to prevent two or more States in a region from submitting a single application under this section for a waiver that establishes a plan that is applicable to all of the States included in such application. In the case of such an application and plan, the requirements of this section shall continue to be applicable with respect to each State included in such application.
Authorization of appropriations
There is authorized to be appropriated such sums as may be necessary for providing funds to States with a waiver under this section for purposes of carrying out activities described in subsection (b)(1)(E).
Granting of waivers
The Secretary may grant a request for a waiver under subsection (a)(1) only if the Secretary determines that the State plan—
will provide, in accordance with subparagraph (B), health benefits coverage to State residents that is at least as comprehensive as the health benefits coverage that such residents would have received under the specified Federal health program (as defined in subsection (i)(4)) for which such residents would have been eligible, absent such waiver;
will provide, in the case of such a waiver under subsection (a)(1) for the State to waive any of the requirements described in subsection (a)(2)(F), health benefits coverage to State residents who would have otherwise received health benefits coverage in the form of medical assistance under the State Federal health program described in subsection (i)(4)(B) (regardless of whether the State provides for such assistance through a State plan under title XIX of the Social Security Act or a waiver of such plan) that includes at least the mandatory benefits under title XIX of the Social Security Act that are required of a State without a waiver of a State plan under such title, including at least benefits for early and periodic screening, diagnostic, and treatment; benefits for non-emergency transportation; and retroactive coverage;
will provide coverage and cost sharing protections against excessive out-of-pocket spending to State residents that are at least as affordable as the coverage and cost sharing protections under the specified Federal health program (as defined in subsection (i)(4)) for which such residents would have been eligible, absent such waiver;
will provide coverage to all residents of the State, including all those otherwise covered under the Federal health care or subsidy programs specified in subparagraphs (B), (C), (E), (F), (G), and (H) of subsection (a)(2), except individuals who are eligible for benefits through the Indian Health Service or for benefits and services under title 38, United States Code;
will provide for public education activities to raise awareness of the availability of qualified health plans and the facilitation of enrollment in such coverage in a manner similar to an entity that serves as a navigator under a grant under section 1311(i);
will be publicly administered by an agency of the State;
will not preclude the purchase of supplemental insurance;
will provide systems for complaints, appeals, independent review, and other procedures for accessing and maintaining benefits that are at least as accessible to State residents as those of the specified Federal health programs (as defined in subsection (i)(4)) for which such residents would have otherwise been eligible without application of such waiver under subsection (a)(1); and
will not increase the Federal deficit.
Requirement to enact a law
A law described in this paragraph is a State law that provides for State actions under a waiver under this section, including the implementation of the State plan under subsection (a)(1)(B).
Termination of opt out
A State may repeal a law described in subparagraph (A) and terminate the authority provided under the waiver with respect to the State.
Scope of waiver
The Secretary shall determine the scope of a waiver of a requirement described in subsection (a)(2) granted to a State under subsection (a)(1).
Under this section, the Secretary may not waive any Federal law or requirement that is not listed in subsection (a)(2).
Determinations by Secretary
Time for determination
The Secretary shall, with respect to an application from a State under this subsection and after taking into account recommendations of the Panel under subsection (g) for such application, make a determination under subsection (a)(1) not later than 90 days after the receipt of such recommendations.
Effect of Determination
Granting of waivers
If the Secretary determines to grant a waiver under subsection (a)(1), the Secretary shall notify the State involved of such determination and the terms and effectiveness of such waiver.
Denial of waiver
If the Secretary determines a waiver should not be granted under subsection (a)(1), the Secretary shall notify the State involved and the appropriate committees of Congress of such determination and the reasons therefor.
Required reports; 5-Year review
As a condition of receipt of a waiver under this section, after each 5-year period of such waiver, a State shall submit to the Secretary a report that is carried out by an independent, non-partisan entity, with respect to such 5-year period and after a process for public notice and comment at the State level, including public hearings, sufficient to ensure a meaningful level of public input, on the following:
How waiver funds have been spent by the State.
The number of residents of the State without health insurance and a description of how the State plans to provide health insurance coverage within the subsequent 5 years to residents of the State without health insurance.
How affordability in the State for health care has changed over the period.
Whether the State has achieved health coverage for at least 95 percent of the population of the State.
Any additional information specified by the Secretary for purposes of determining the successes and challenges of the waiver.
In the case a State, based on the report submitted under paragraph (1) for a 5-year period—
has been determined by the Secretary, after taking into account recommendations of the Panel under subsection (g), to have not achieved health coverage for at least 95 percent of the population of the State—
the State shall have access to technical assistance described in subsection (a)(4)(B)(vii) to improve the health insurance program of the State implemented through the waiver under this section;
the State shall have a grace period of 6 months after such determination to achieve health coverage for at least 95 percent of such population; and
if after such 6 months, the State has not achieved such health coverage, the waiver under this section shall be terminated; and
has been determined by the Secretary, after taking into account recommendations of the Panel under subsection (g), to have achieved health coverage for at least 95 percent of the population of the State, the State, as a condition of continuing such waiver, shall submit to the Secretary a plan for achieving health coverage for the remainder of the population of the State.
Not later than 180 days after the enactment of the State-Based Universal Health Care Act of 2018, the Secretary of Health and Human Services, the Secretary of the Treasury, the Director of the Office of Personnel Management, the Secretary of Defense, and the Secretary of Labor shall, through the execution of an interagency memorandum of understanding among such Secretaries and the Director—
develop a process for coordinating and consolidating the State waiver processes applicable under the provisions of this section, and the existing waiver processes applicable under—
titles XI, XVIII, XIX, and XXI of the Social Security Act; and
any other Federal law relating to the provision of health care items or services; and
regulations (including regulations required under subsection (a)(4)(B)), rulings, and interpretations issued by such Secretaries and the Director relating to the same matter over which two or more such Secretaries or Director have responsibility under this section are administered so as to have the same effect at all times; and
coordination of policies relating to the granting, implementation, and continuation of waivers through such Secretaries and Director in order to have a coordinated strategy that avoids duplication of effort by the States or Secretaries and Director and ensures clarity about waiver application status and approval.
The process under paragraph (1)(A) shall permit a State to submit a single application for a waiver under all of the provisions of this section and the provisions of law listed under clauses (i) and (ii) of such paragraph.
Submission of conforming amendments
The Secretary of Health and Human Services, in coordination with the other Secretaries (including the Director of the Office of Personnel Management), shall submit to Congress such recommendations for such technical and conforming amendments to law as may be appropriate to assist in the implementation of this section.
Independent Assessment Panel for Comprehensive Health Care
There is established a committee to be known as the
Independent Assessment Panel for Comprehensive Health Care (in this section referred to as the
Consideration of submissions
The Secretary shall forward a copy of each waiver application submitted under this section to the Panel for consideration under this subsection.
The Panel shall—
review any waiver application by a State forwarded under paragraph (2) and any report submitted under paragraph (1) of subsection (e) for purposes of the review under paragraph (2) of such subsection;
not later than 90 days after submission of such application (or report) by the State, provide to the State and to the Secretary the recommendations of the Panel regarding the approval or disapproval of such waiver application (or regarding the status of the waiver for continuation pursuant to subsection (e)(2)) and, if applicable, possible improvements to such application (or for purposes of subsection (e)(2)); and
submit to Congress an annual report on waiver applications (and waiver reports under subsection (e)) reviewed by the Panel during the applicable year, including the number of applications (and reports) received and the number of applications recommended for approval (and of reports with respect to which recommendations for continuation were provided).
Number and appointment
The Panel shall consist of seven members appointed by the Secretary of Health and Human Services, of whom—
one shall be appointed on the recommendation of the Speaker of the House of Representatives;
one shall be appointed on the recommendation of the minority leader of the House of Representatives;
one shall be appointed on the recommendation of the majority leader of the Senate;
one shall be appointed on the recommendation of the minority leader of the Senate;
one shall be appointed from the Republican Governors Association;
one shall be appointed from the Democratic Governors Association; and
one shall be a representative from the consumer advocacy community.
Term of service
Each member of the Panel shall serve a three-year term. A member may serve after the expiration of that member’s term until a successor has been appointed pursuant to subparagraph (A).
Any member appointed to fill a vacancy occurring before the expiration of the term for which the member’s predecessor was appointed shall be appointed only for the remainder of that term. A vacancy in the Commission shall be filled in the manner in which the original appointment was made.
Members of the Panel shall serve without pay.
Chairperson; Vice Chairperson
The Secretary of Health and Human Services, or a designee of the Secretary, shall serve on the Panel as the Chairperson of the Panel.
The Administrator of the Federal Emergency Management Agency, or a designee of the Administrator, shall serve on the Panel as the Vice Chairperson of the Panel.
Staff, experts, and consultants
The Panel may—
appoint such staff as the Panel considers to be appropriate, without regard to the provisions of title 5, United States Code, governing appointments in the competitive service;
fix the pay of such staff, without regard to the provisions of chapter 51 and subchapter III of chapter 53 of such title relating to classification and General Schedule pay rates; and
procure the services of experts and consultants in accordance with the provisions of section 3109(b) of such title.
Detail of Federal personnel
Upon request of the Panel, the head of any Federal agency may detail, on a reimbursable basis, any of the personnel of the agency to the Panel to assist it in carrying out the duties under paragraph (3).
Federal Advisory Committee Act
The Federal Advisory Committee Act (5 U.S.C. App.) shall apply to the Panel.
Authorization of appropriations
There is authorized to be appropriated such sums as may be necessary to the Panel for carrying out the duties of the panel for each of fiscal years 2018 through 2023.
Guidance relating to American Indians and Alaska Natives
The Secretary shall issue guidance with respect to applying the provisions of this section in a manner consistent with the following:
To further the goal that Federal health services to maintain and improve the health of the Indians are consonant with and required by the Federal Government’s historical and unique legal relationship with, and resulting responsibility to, the American Indian people.
No enrollment fee, premium, or similar charge, and no deduction, copayment, cost sharing, or similar charge is to be imposed against an Indian who is furnished an item or service through a waiver under this section. All costs incurred in waiving such charges shall be borne by the Federal Government in fulfillment of the trust responsibility.
A State may not require the enrollment of an individual who is an Indian in health insurance offered through a waiver under this section.
Health insurance issuers offering coverage pursuant to a waiver under this section must make good faith efforts to contract with Indian Health Care Providers operating within the area served by the issuers.
Health insurance issuers offering coverage pursuant to a waiver under this section shall pay Indian Health Care Providers, whether such providers are participating or nonparticipating providers with respect to the coverage, for covered services provided to those Indian enrollees who are eligible to receive services from such providers at a rate equal to the rate negotiated between such entity and the provider involved or, if such a rate has not been negotiated, at a rate that is not less than the level and amount of payment which the entity would make for the services if the services were furnished by a participating provider which is not an Indian Health Care Provider.
Health insurance issuers offering coverage pursuant to a waiver under this section will include a standard contract addendum when contracting with Indian Health Care Providers. The contract addendum will be developed in consultation with tribes and in conference with Urban Indian Health Programs operating within the service area of the State.
The treatment of Indians under this legislation does not constitute invidious racial discrimination in violation of the Due Process Clause of the Fifth or Fourteenth Amendments, but is reasonable and rationally designed to further the health of Indians.
In the case of any State in which 1 or more Indian Health Care Programs furnishes health care services, the State will provide for a process under which the State seeks advice on a regular, ongoing basis from designees of such Indian Health Care Programs and Urban Indian Organizations on matters relating to the application of a waiver under this section that are likely to have a direct effect on such Indian Health Programs and that—
shall include solicitation of advice prior to submission of any plan amendments, waiver requests, and proposals for demonstration projects likely to have a direct effect on Indians or Indian Health Care Programs; and
may include appointment of an advisory committee and of a designee of such Indian Health Care Programs to the medical care advisory committee advising the State on its waiver under this section.
For purposes of this subsection:
The term Indian has the meaning given such term in section 447.50 of title 42 of the Code of Federal Regulations (as in effect on July 1, 2010).
The term Indian Health Care Provider has the meaning given such term in section 438.14(a) of title 42 of the Code of Federal Regulations.
In this section:
Health benefits coverage
The term health benefits coverage—
health insurance coverage, as such term is defined in section 2791(b) of the Public Health Service Act (42 U.S.C. 300gg–91(b)); and
coverage under a group health plan, as such term is defined in section 2791(a) of the Public Health Service Act (42 U.S.C. 300gg–91(a)); and
includes any medical coverage or health benefits provided under any specified Federal health program described in subparagraphs (A) through (E) of paragraph (4).
With respect to a State, the term resident means an individual—
a citizen or national of the United States; or
an alien lawfully residing in the State (including an alien who is granted deferred action or who is otherwise authorized to remain in the United States); and
whose primary residence (as defined by the State) is located in the State.
The term Secretary means—
the Secretary of Health and Human Services with respect to waivers relating to the provisions described in subparagraphs (A), (B), and (D) through (G) of paragraph (2) of subsection (a);
the Secretary of the Treasury with respect to waivers relating to the provisions described in subparagraph (C) of such paragraph;
the Director of the Office of Personnel Management with respect to waivers relating to the provisions described in subparagraph (H) of such paragraph;
the Secretary of Defense with respect to waivers relating to the provisions described in subparagraph (I) of such paragraph; and
the Secretary of Labor with respect to waivers relating to the provisions described in subparagraph (J) of such paragraph.
Specified Federal health program
The term specified Federal health program means all of the following programs:
The Medicare program under title XVIII of the Social Security Act.
The Medicaid program under title XIX of the Social Security Act.
The Children’s Health Insurance Program under title XXI of the Social Security Act.
The Federal Employees Health Benefits Plan under chapter 89 of title 5 of the United States Code.
Medical coverage under chapter 55 of title 10, United States Code, including coverage under the TRICARE program.
An Exchange established under this subtitle.
Subsidies under section 1402.
Tax credits under sections 36B and 45R of the Internal Revenue Code of 1986.
The item in the table of contents in section 1(b) of the Patient Protection and Affordable Care Act relating to section 1332 is amended to read as follows:
Sec. 1332. Waiver for State universal health care.
Continuation of current law for current waivers and waiver applications
Subject to paragraph (2), in the case of a State that has applied to the Secretary of Health and Human Services for a waiver under section 1332 of the Patient Protection and Affordable Care Act (42 U.S.C. 18052), as in effect before the enactment of this Act, for plan year 2018, such section 1332 shall continue to apply to such application and to any waiver under such application for subsequent plan years.
Transition to new waiver law
Nothing in paragraph (1) shall be construed as preventing a State described in such paragraph from withdrawing an application described in such paragraph (or requesting the Secretary to terminate an approved waiver referred to in such paragraph) for plan year 2019 or a subsequent plan year and subsequently applying for a waiver under section 1332 of the Patient Protection and Affordable Care Act, as amended by subsection (a), for such a plan year.