Section 1 Short title
This Act may be cited as the “Comprehensive Breast Reconstruction Act of 2021”.
Comprehensive Breast Reconstruction Act of 2021
A BILL
To amend the Employee Retirement Income Security Act of 1974 to provide for health coverage of nipple-areolar complex tattooing in connection with reconstructive surgery following mastectomy and to amend titles XVIII and XIX of the Social Security Act to extend coverage of certain breast reconstructive services following mastectomy under the Medicare and Medicaid programs.
Sec. 2 Providing for health coverage of nipple-areolar complex tattooing in connection with reconstructive surgery following mastectomy; extending coverage of breast reconstructive services following mastectomy under Medicare and Medicaid
Private health insurance coverage and group health plans—
In general— Section 713(a) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1185b(a)) is amended—
in paragraph (2), by striking at the end “and”;
in paragraph (3), by adding at the end “and”;
by inserting after paragraph (3) the following new paragraph:
“(4) tattooing of the nipple-areolar complex pursuant to or as part of such reconstruction if such tattooing is performed by a physician, physician extender (as defined in section 1834(x) of the Social Security Act, or State-licensed tattoo artist (as defined in such section), as prescribed by a physician;”
by adding at the end of the flush matter following paragraph (4), as inserted by subparagraph (C), the following: “Tattooing of the nipple-areolar complex described in paragraph (4) shall be deemed to be medically reasonable and necessary.”.
Effective dates—
In general— Subject to subparagraph (B), the amendments made by this section shall apply with respect to plan years beginning after the date of enactment of this Act.
Special rule for collective bargaining agreements— In the case of a group health plan maintained pursuant to 1 or more collective bargaining agreements between employee representatives and 1 or more employers ratified before the date of enactment of this Act, the amendments made by this section shall not apply to plan years beginning before the later of—
the date on which the last collective bargaining agreements relating to the plan terminates (determined without regard to any extension thereof agreed to after the date of enactment of this Act), or
January 1 of the first year beginning at least one year after the date of the enactment of this Act.
Medicare coverage—
in subparagraph (GG), by striking at the end “and”;
in subparagraph (HH), by inserting at the end “; and”; and
by adding at the end the following new subparagraph:
“(II) qualifying reconstructive breast surgery services (as defined in subsection (kkk)).”
Definition— Section 1861 of the Social Security Act (42 U.S.C. 1395x) is amended by adding at the end the following new subsection:
“(kkk) Qualifying reconstructive breast surgery services—The term qualifying reconstructive breast surgery services means, in the case of an individual who has a mastectomy, breast reconstruction in connection with such mastectomy, including—
“(1) all stages of reconstruction of the breast on which the mastectomy has been performed;
“(2) surgery and reconstruction of the other breast to produce a symmetrical appearance;
“(3) prostheses and physical complications of mastectomy, including lymphedemas; and
“(4) tattooing of the nipple-areolar complex pursuant to or as part of such reconstruction if such tattooing is performed by a physician, physician extender, or State-licensed tattoo artist (as such terms are defined in section 1834(x), as prescribed by a physician;”
Payment—
by striking “and (DD)” and inserting “(DD)”; and
by inserting before the semicolon at the end the following “ and (EE) with respect to qualifying reconstructive breast surgery services (as defined in section 1861(kkk)), the amount paid shall be equal to the amount payable in accordance with section 1834(x)”.
Payment determination— Section 1834 of the Social Security Act (42 U.S.C. 1395m) is amended by adding at the end the following new subsection:
“(x) Qualifying reconstructive breast surgery services
“(1) In general—With respect to qualifying reconstructive breast surgery services described in section 1861(kkk)(4) for which payment is determined under this subsection, payment shall be made in an amount equal to 100 percent of the reasonable and customary amount for nipple areolar tattooing, determined according to the reimbursement rates for CPT codes 11920, 11921, and 11922 (or any successor to such codes).
“(2) Reasonable and necessary treatment—Qualifying reconstructive breast surgery services described in section 1861(kkk)(4) shall be deemed to be reasonable and necessary for purposes of section 1862(a)(1)(A).
“(3) Physician extender—For purposes of this subsection and section 1861(kkk)(4), the term physician extender means a health care practitioner who is not a physician and who is licensed or certified by the State in which the practitioner if furnishing services to furnish items or services typically furnished by a physician, such as a nurse practitioner or physician assistant.
“(4) State-licensed tattoo artist—For purposes of this subsection and section 1861(kkk)(4), the term State-licensed tattoo artist means an individual (as specified by the law of the State in which the individual is licensed in performing permanent body art and in which they are so practicing such art) who maintains all public health, safety, and welfare standards and regulations set forth by the State, including all sterilization, sanitation, and safety regulations for tattoo parlors and salons, tattoo inks, tattoo instruments, and any other related paraphernalia, as well as allowing the individual to perform the procedure in the prescribing physician’s place of business with the consent of the physician and the patient, abiding by all such standards and regulations.”
Including certain tattoo artists as Medicare providers for purposes of tattooing of the nipple–areolar complex after mastectomy— Section 1866(j)(1) of the Social Security Act (42 U.S.C. 1395cc(j)(1)) is amended by adding at the end the following new subparagraph:
“(D) Including certain tattoo artists for purposes of tattooing of the nipple–areolar complex after mastectomy—For purposes of this section, the term supplier shall include a State-licensed tattoo artist (as defined in section 1834(x)), but only with respect to the tattooing of the nipple-areolar complex pursuant to or as part of reconstructive surgery following a medically necessary mastectomy and if such tattooing is prescribed by a physician.”
Effective date— The amendments made by this subsection shall apply with respect to items and services furnished on or after January 1 of the first year beginning after the date of the enactment of this Act.
Medicaid coverage—
by redesignating paragraph (30) as paragraph (31);
in paragraph (29), by striking at the end “and”;
by inserting after paragraph (29) the following new paragraph:
“(30) qualifying reconstructive breast surgery services (as defined in section 1861(kkk)); and”
by adding at the end of the flush matter following paragraph (31), as redesignated by subparagraph (A), the following new sentence: “For purposes of paragraph (30), qualifying reconstructive breast surgery services described in section 1861(kkk)(4) shall be deemed to be medically reasonable and necessary.”.
Effective date—
In general— Subject to subparagraph (B), the amendments made by this section shall take effect with respect to medical assistance provided on or after January 1 of the first year beginning after the date of the enactment of this Act.
Exception for State legislation— In the case of a State plan under title XIX of the Social Security Act (42 U.S.C. 1396 et seq.) that the Secretary of Health and Human Services determines requires State legislation in order for the respective plan to meet any requirement imposed by the amendments made by this section, the respective plan shall not be regarded as failing to comply with the requirements of such title solely on the basis of its failure to meet such an additional requirement before the first day of the first calendar quarter beginning after the close of the first regular session of the State legislature that begins after the date of the enactment of this Act. For purposes of the previous sentence, in the case of a State that has a 2-year legislative session, each year of the session shall be considered to be a separate regular session of the State legislature.