Version	Word Count	Changes From Previous Version	Percent Change
Introduced in House	4,929	n/a	n/a
Reported in House	9,975	16	52%
Engrossed in House	6,639	180	65%
Received in Senate	6,618	6	1%
Placed on Calendar Senate	6,680	6 Show Changes Hide Changes	1%

Display Version Introduced in House Reported in House Engrossed in House Received in Senate Placed on Calendar Senate

HR 5 RDSPCSCommentsClose CommentsPermalink

112th CONGRESSCommentsClose CommentsPermalink

2d SessionCommentsClose CommentsPermalink

H. R. 5CommentsClose CommentsPermalink

IN THE SENATE OF THE UNITED STATESCommentsClose CommentsPermalink

March 22, 2012CommentsClose CommentsPermalink

Received and; read the first timeCommentsClose CommentsPermalink

March 26, 2012CommentsClose CommentsPermalink

Read the second time and placed on the calendarCommentsClose CommentsPermalink

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AN ACTCommentsClose CommentsPermalink

To improve patient access to health care services and provide improved medical care by reducing the excessive burden the liability system places on the health care delivery system.CommentsClose CommentsPermalink

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, CommentsClose CommentsPermalink

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Protecting Access to Healthcare Act’.CommentsClose CommentsPermalink

TITLE I--HEALTH ACTCommentsClose CommentsPermalink

SEC. 101. SHORT TITLE.

This title may be cited as the ‘Help Efficient, Accessible, Low-cost, Timely Healthcare (HEALTH) Act of 2012’.CommentsClose CommentsPermalink

SEC. 102. FINDINGS AND PURPOSE.

It is the purpose of this title to implement reasonable, comprehensive, and effective health care liability reforms designed to--CommentsClose CommentsPermalink





(1) improve the availability of health care services in cases in which health care liability actions have been shown to be a factor in the decreased availability of services;CommentsClose CommentsPermalink





(2) reduce the incidence of ‘defensive medicine’ and lower the cost of health care liability insurance, all of which contribute to the escalation of health care costs;CommentsClose CommentsPermalink





(3) ensure that persons with meritorious health care injury claims receive fair and adequate compensation, including reasonable noneconomic damages;CommentsClose CommentsPermalink





(4) improve the fairness and cost-effectiveness of our current health care liability system to resolve disputes over, and provide compensation for, health care liability by reducing uncertainty in the amount of compensation provided to injured individuals; andCommentsClose CommentsPermalink





(5) provide an increased sharing of information in the health care system which will reduce unintended injury and improve patient care.CommentsClose CommentsPermalink

SEC. 103. ENCOURAGING SPEEDY RESOLUTION OF CLAIMS.

The time for the commencement of a health care lawsuit shall be 3 years after the date of manifestation of injury or 1 year after the claimant discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. In no event shall the time for commencement of a health care lawsuit exceed 3 years after the date of manifestation of injury unless tolled for any of the following--CommentsClose CommentsPermalink





(1) upon proof of fraud;CommentsClose CommentsPermalink





(2) intentional concealment; orCommentsClose CommentsPermalink





(3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.CommentsClose CommentsPermalink





Actions by a minor shall be commenced within 3 years from the date of the alleged manifestation of injury except that actions by a minor under the full age of 6 years shall be commenced within 3 years of manifestation of injury or prior to the minor’s 8th birthday, whichever provides a longer period. Such time limitation shall be tolled for minors for any period during which a parent or guardian and a health care provider or health care organization have committed fraud or collusion in the failure to bring an action on behalf of the injured minor.CommentsClose CommentsPermalink

SEC. 104. COMPENSATING PATIENT INJURY.

(a) Unlimited Amount of Damages for Actual Economic Losses in Health Care Lawsuits- In any health care lawsuit, nothing in this title shall limit a claimant’s recovery of the full amount of the available economic damages, notwithstanding the limitation in subsection (b).CommentsClose CommentsPermalink





(b) Additional Noneconomic Damages- In any health care lawsuit, the amount of noneconomic damages, if available, may be as much as $250,000, regardless of the number of parties against whom the action is brought or the number of separate claims or actions brought with respect to the same injury.CommentsClose CommentsPermalink





(c) No Discount of Award for Noneconomic Damages- For purposes of applying the limitation in subsection (b), future noneconomic damages shall not be discounted to present value. The jury shall not be informed about the maximum award for noneconomic damages. An award for noneconomic damages in excess of $250,000 shall be reduced either before the entry of judgment, or by amendment of the judgment after entry of judgment, and such reduction shall be made before accounting for any other reduction in damages required by law. If separate awards are rendered for past and future noneconomic damages and the combined awards exceed $250,000, the future noneconomic damages shall be reduced first.CommentsClose CommentsPermalink





(d) Fair Share Rule- In any health care lawsuit, each party shall be liable for that party’s several share of any damages only and not for the share of any other person. Each party shall be liable only for the amount of damages allocated to such party in direct proportion to such party’s percentage of responsibility. Whenever a judgment of liability is rendered as to any party, a separate judgment shall be rendered against each such party for the amount allocated to such party. For purposes of this section, the trier of fact shall determine the proportion of responsibility of each party for the claimant’s harm.CommentsClose CommentsPermalink

SEC. 105. MAXIMIZING PATIENT RECOVERY.

(a) Court Supervision of Share of Damages Actually Paid to Claimants- In any health care lawsuit, the court shall supervise the arrangements for payment of damages to protect against conflicts of interest that may have the effect of reducing the amount of damages awarded that are actually paid to claimants. In particular, in any health care lawsuit in which the attorney for a party claims a financial stake in the outcome by virtue of a contingent fee, the court shall have the power to restrict the payment of a claimant’s damage recovery to such attorney, and to redirect such damages to the claimant based upon the interests of justice and principles of equity. In no event shall the total of all contingent fees for representing all claimants in a health care lawsuit exceed the following limits:CommentsClose CommentsPermalink





(1) Forty percent of the first $50,000 recovered by the claimant(s).CommentsClose CommentsPermalink





(2) Thirty-three and one-third percent of the next $50,000 recovered by the claimant(s).CommentsClose CommentsPermalink





(3) Twenty-five percent of the next $500,000 recovered by the claimant(s).CommentsClose CommentsPermalink





(4) Fifteen percent of any amount by which the recovery by the claimant(s) is in excess of $600,000.CommentsClose CommentsPermalink





(b) Applicability- The limitations in this section shall apply whether the recovery is by judgment, settlement, mediation, arbitration, or any other form of alternative dispute resolution. In a health care lawsuit involving a minor or incompetent person, a court retains the authority to authorize or approve a fee that is less than the maximum permitted under this section. The requirement for court supervision in the first two sentences of subsection (a) applies only in civil actions.CommentsClose CommentsPermalink

SEC. 106. PUNITIVE DAMAGES.

(a) In General- Punitive damages may, if otherwise permitted by applicable State or Federal law, be awarded against any person in a health care lawsuit only if it is proven by clear and convincing evidence that such person acted with malicious intent to injure the claimant, or that such person deliberately failed to avoid unnecessary injury that such person knew the claimant was substantially certain to suffer. In any health care lawsuit where no judgment for compensatory damages is rendered against such person, no punitive damages may be awarded with respect to the claim in such lawsuit. No demand for punitive damages shall be included in a health care lawsuit as initially filed. A court may allow a claimant to file an amended pleading for punitive damages only upon a motion by the claimant and after a finding by the court, upon review of supporting and opposing affidavits or after a hearing, after weighing the evidence, that the claimant has established by a substantial probability that the claimant will prevail on the claim for punitive damages. At the request of any party in a health care lawsuit, the trier of fact shall consider in a separate proceeding--CommentsClose CommentsPermalink





(1) whether punitive damages are to be awarded and the amount of such award; andCommentsClose CommentsPermalink





(2) the amount of punitive damages following a determination of punitive liability.CommentsClose CommentsPermalink





If a separate proceeding is requested, evidence relevant only to the claim for punitive damages, as determined by applicable State law, shall be inadmissible in any proceeding to determine whether compensatory damages are to be awarded.CommentsClose CommentsPermalink





(b) Determining Amount of Punitive Damages-CommentsClose CommentsPermalink





(1) FACTORS CONSIDERED- In determining the amount of punitive damages, if awarded, in a health care lawsuit, the trier of fact shall consider only the following--CommentsClose CommentsPermalink





(A) the severity of the harm caused by the conduct of such party;CommentsClose CommentsPermalink





(B) the duration of the conduct or any concealment of it by such party;CommentsClose CommentsPermalink





(C) the profitability of the conduct to such party;CommentsClose CommentsPermalink





(D) the number of products sold or medical procedures rendered for compensation, as the case may be, by such party, of the kind causing the harm complained of by the claimant;CommentsClose CommentsPermalink





(E) any criminal penalties imposed on such party, as a result of the conduct complained of by the claimant; andCommentsClose CommentsPermalink





(F) the amount of any civil fines assessed against such party as a result of the conduct complained of by the claimant.CommentsClose CommentsPermalink





(2) MAXIMUM AWARD- The amount of punitive damages, if awarded, in a health care lawsuit may be as much as $250,000 or as much as two times the amount of economic damages awarded, whichever is greater. The jury shall not be informed of this limitation.CommentsClose CommentsPermalink





(c) No Punitive Damages for Products That Comply With FDA Standards-CommentsClose CommentsPermalink





(1) IN GENERAL-CommentsClose CommentsPermalink





(A) No punitive damages may be awarded against the manufacturer or distributor of a medical product, or a supplier of any component or raw material of such medical product, based on a claim that such product caused the claimant’s harm where--CommentsClose CommentsPermalink





(i)(I) such medical product was subject to premarket approval, clearance, or licensure by the Food and Drug Administration with respect to the safety of the formulation or performance of the aspect of such medical product which caused the claimant’s harm or the adequacy of the packaging or labeling of such medical product; andCommentsClose CommentsPermalink





(II) such medical product was so approved, cleared, or licensed; orCommentsClose CommentsPermalink





(ii) such medical product is generally recognized among qualified experts as safe and effective pursuant to conditions established by the Food and Drug Administration and applicable Food and Drug Administration regulations, including without limitation those related to packaging and labeling, unless the Food and Drug Administration has determined that such medical product was not manufactured or distributed in substantial compliance with applicable Food and Drug Administration statutes and regulations.CommentsClose CommentsPermalink





(B) RULE OF CONSTRUCTION- Subparagraph (A) may not be construed as establishing the obligation of the Food and Drug Administration to demonstrate affirmatively that a manufacturer, distributor, or supplier referred to in such subparagraph meets any of the conditions described in such subparagraph.CommentsClose CommentsPermalink





(2) LIABILITY OF HEALTH CARE PROVIDERS- A health care provider who prescribes, or who dispenses pursuant to a prescription, a medical product approved, licensed, or cleared by the Food and Drug Administration shall not be named as a party to a product liability lawsuit involving such product and shall not be liable to a claimant in a class action lawsuit against the manufacturer, distributor, or seller of such product. Nothing in this paragraph prevents a court from consolidating cases involving health care providers and cases involving products liability claims against the manufacturer, distributor, or product seller of such medical product.CommentsClose CommentsPermalink





(3) PACKAGING- In a health care lawsuit for harm which is alleged to relate to the adequacy of the packaging or labeling of a drug which is required to have tamper-resistant packaging under regulations of the Secretary of Health and Human Services (including labeling regulations related to such packaging), the manufacturer or product seller of the drug shall not be held liable for punitive damages unless such packaging or labeling is found by the trier of fact by clear and convincing evidence to be substantially out of compliance with such regulations.CommentsClose CommentsPermalink





(4) EXCEPTION- Paragraph (1) shall not apply in any health care lawsuit in which--CommentsClose CommentsPermalink





(A) a person, before or after premarket approval, clearance, or licensure of such medical product, knowingly misrepresented to or withheld from the Food and Drug Administration information that is required to be submitted under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 et seq.) or section 351 of the Public Health Service Act (42 U.S.C. 262) that is material and is causally related to the harm which the claimant allegedly suffered;CommentsClose CommentsPermalink





(B) a person made an illegal payment to an official of the Food and Drug Administration for the purpose of either securing or maintaining approval, clearance, or licensure of such medical product; orCommentsClose CommentsPermalink





(C) the defendant caused the medical product which caused the claimant’s harm to be misbranded or adulterated (as such terms are used in chapter V of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 351 et seq.)).CommentsClose CommentsPermalink

SEC. 107. AUTHORIZATION OF PAYMENT OF FUTURE DAMAGES TO CLAIMANTS IN HEALTH CARE LAWSUITS.

(a) In General- In any health care lawsuit, if an award of future damages, without reduction to present value, equaling or exceeding $50,000 is made against a party with sufficient insurance or other assets to fund a periodic payment of such a judgment, the court shall, at the request of any party, enter a judgment ordering that the future damages be paid by periodic payments, in accordance with the Uniform Periodic Payment of Judgments Act promulgated by the National Conference of Commissioners on Uniform State Laws.CommentsClose CommentsPermalink





(b) Applicability- This section applies to all actions which have not been first set for trial or retrial before the effective date of this title.CommentsClose CommentsPermalink

SEC. 108. DEFINITIONS.

In this title:CommentsClose CommentsPermalink





(1) ALTERNATIVE DISPUTE RESOLUTION SYSTEM; ADR- The term ‘alternative dispute resolution system’ or ‘ADR’ means a system that provides for the resolution of health care lawsuits in a manner other than through a civil action brought in a State or Federal court.CommentsClose CommentsPermalink





(2) CLAIMANT- The term ‘claimant’ means any person who brings a health care lawsuit, including a person who asserts or claims a right to legal or equitable contribution, indemnity, or subrogation, arising out of a health care liability claim or action, and any person on whose behalf such a claim is asserted or such an action is brought, whether deceased, incompetent, or a minor.CommentsClose CommentsPermalink





(3) COMPENSATORY DAMAGES- The term ‘compensatory damages’ means objectively verifiable monetary losses incurred as a result of the provision of, use of, or payment for (or failure to provide, use, or pay for) health care services or medical products, such as past and future medical expenses, loss of past and future earnings, cost of obtaining domestic services, loss of employment, and loss of business or employment opportunities, damages for physical and emotional pain, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium (other than loss of domestic service), hedonic damages, injury to reputation, and all other nonpecuniary losses of any kind or nature. The term ‘compensatory damages’ includes economic damages and noneconomic damages, as such terms are defined in this section.CommentsClose CommentsPermalink





(4) CONTINGENT FEE- The term ‘contingent fee’ includes all compensation to any person or persons which is payable only if a recovery is effected on behalf of one or more claimants.CommentsClose CommentsPermalink





(5) ECONOMIC DAMAGES- The term ‘economic damages’ means objectively verifiable monetary losses incurred as a result of the provision of, use of, or payment for (or failure to provide, use, or pay for) health care services or medical products, such as past and future medical expenses, loss of past and future earnings, cost of obtaining domestic services, loss of employment, and loss of business or employment opportunities.CommentsClose CommentsPermalink





(6) HEALTH CARE LAWSUIT- The term ‘health care lawsuit’ means any health care liability claim concerning the provision of health care goods or services or any medical product affecting interstate commerce, or any health care liability action concerning the provision of health care goods or services or any medical product affecting interstate commerce, brought in a State or Federal court or pursuant to an alternative dispute resolution system, against a health care provider, a health care organization, or the manufacturer, distributor, supplier, marketer, promoter, or seller of a medical product, regardless of the theory of liability on which the claim is based, or the number of claimants, plaintiffs, defendants, or other parties, or the number of claims or causes of action, in which the claimant alleges a health care liability claim. Such term does not include a claim or action which is based on criminal liability; which seeks civil fines or penalties paid to Federal, State, or local government; or which is grounded in antitrust.CommentsClose CommentsPermalink





(7) HEALTH CARE LIABILITY ACTION- The term ‘health care liability action’ means a civil action brought in a State or Federal court or pursuant to an alternative dispute resolution system, against a health care provider, a health care organization, or the manufacturer, distributor, supplier, marketer, promoter, or seller of a medical product, regardless of the theory of liability on which the claim is based, or the number of plaintiffs, defendants, or other parties, or the number of causes of action, in which the claimant alleges a health care liability claim.CommentsClose CommentsPermalink





(8) HEALTH CARE LIABILITY CLAIM- The term ‘health care liability claim’ means a demand by any person, whether or not pursuant to ADR, against a health care provider, health care organization, or the manufacturer, distributor, supplier, marketer, promoter, or seller of a medical product, including, but not limited to, third-party claims, cross-claims, counter-claims, or contribution claims, which are based upon the provision of, use of, or payment for (or the failure to provide, use, or pay for) health care services or medical products, regardless of the theory of liability on which the claim is based, or the number of plaintiffs, defendants, or other parties, or the number of causes of action.CommentsClose CommentsPermalink





(9) HEALTH CARE ORGANIZATION- The term ‘health care organization’ means any person or entity which is obligated to provide or pay for health benefits under any health plan, including any person or entity acting under a contract or arrangement with a health care organization to provide or administer any health benefit.CommentsClose CommentsPermalink





(10) HEALTH CARE PROVIDER- The term ‘health care provider’ means any person or entity required by State or Federal laws or regulations to be licensed, registered, or certified to provide health care services, and being either so licensed, registered, or certified, or exempted from such requirement by other statute or regulation.CommentsClose CommentsPermalink





(11) HEALTH CARE GOODS OR SERVICES- The term ‘health care goods or services’ means any goods or services provided by a health care organization, provider, or by any individual working under the supervision of a health care provider, that relates to the diagnosis, prevention, or treatment of any human disease or impairment, or the assessment or care of the health of human beings.CommentsClose CommentsPermalink





(12) MALICIOUS INTENT TO INJURE- The term ‘malicious intent to injure’ means intentionally causing or attempting to cause physical injury other than providing health care goods or services.CommentsClose CommentsPermalink





(13) MEDICAL PRODUCT- The term ‘medical product’ means a drug, device, or biological product intended for humans, and the terms ‘drug’, ‘device’, and ‘biological product’ have the meanings given such terms in sections 201(g)(1) and 201(h) of the Federal Food, Drug and Cosmetic Act (21 U.S.C. 321(g)(1) and (h)) and section 351(a) of the Public Health Service Act (42 U.S.C. 262(a)), respectively, including any component or raw material used therein, but excluding health care services.CommentsClose CommentsPermalink





(14) NONECONOMIC DAMAGES- The term ‘noneconomic damages’ means damages for physical and emotional pain, suffering, inconvenience, physical impairment, mental anguish, disfigurement, loss of enjoyment of life, loss of society and companionship, loss of consortium (other than loss of domestic service), hedonic damages, injury to reputation, and all other nonpecuniary losses of any kind or nature.CommentsClose CommentsPermalink





(15) PUNITIVE DAMAGES- The term ‘punitive damages’ means damages awarded, for the purpose of punishment or deterrence, and not solely for compensatory purposes, against a health care provider, health care organization, or a manufacturer, distributor, or supplier of a medical product. Punitive damages are neither economic nor noneconomic damages.CommentsClose CommentsPermalink





(16) RECOVERY- The term ‘recovery’ means the net sum recovered after deducting any disbursements or costs incurred in connection with prosecution or settlement of the claim, including all costs paid or advanced by any person. Costs of health care incurred by the plaintiff and the attorneys’ office overhead costs or charges for legal services are not deductible disbursements or costs for such purpose.CommentsClose CommentsPermalink





(17) STATE- The term ‘State’ means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Northern Mariana Islands, the Trust Territory of the Pacific Islands, and any other territory or possession of the United States, or any political subdivision thereof.CommentsClose CommentsPermalink

SEC. 109. EFFECT ON OTHER LAWS.

(a) Vaccine Injury-CommentsClose CommentsPermalink





(1) To the extent that title XXI of the Public Health Service Act establishes a Federal rule of law applicable to a civil action brought for a vaccine-related injury or death--CommentsClose CommentsPermalink





(A) this title does not affect the application of the rule of law to such an action; andCommentsClose CommentsPermalink





(B) any rule of law prescribed by this title in conflict with a rule of law of such title XXI shall not apply to such action.CommentsClose CommentsPermalink





(2) If there is an aspect of a civil action brought for a vaccine-related injury or death to which a Federal rule of law under title XXI of the Public Health Service Act does not apply, then this title or otherwise applicable law (as determined under this title) will apply to such aspect of such action.CommentsClose CommentsPermalink





(b) Other Federal Law- Except as provided in this section, nothing in this title shall be deemed to affect any defense available to a defendant in a health care lawsuit or action under any other provision of Federal law.CommentsClose CommentsPermalink

SEC. 110. STATE FLEXIBILITY AND PROTECTION OF STATES’ RIGHTS.

(a) Health Care Lawsuits- The provisions governing health care lawsuits set forth in this title preempt, subject to subsections (b) and (c), State law to the extent that State law prevents the application of any provisions of law established by or under this title. The provisions governing health care lawsuits set forth in this title supersede chapter 171 of title 28, United States Code, to the extent that such chapter--CommentsClose CommentsPermalink





(1) provides for a greater amount of damages or contingent fees, a longer period in which a health care lawsuit may be commenced, or a reduced applicability or scope of periodic payment of future damages, than provided in this title; orCommentsClose CommentsPermalink





(2) prohibits the introduction of evidence regarding collateral source benefits, or mandates or permits subrogation or a lien on collateral source benefits.CommentsClose CommentsPermalink





(b) Protection of States’ Rights and Other Laws- (1) Any issue that is not governed by any provision of law established by or under this title (including State standards of negligence) shall be governed by otherwise applicable State or Federal law.CommentsClose CommentsPermalink





(2) This title shall not preempt or supersede any State or Federal law that imposes greater procedural or substantive protections for health care providers and health care organizations from liability, loss, or damages than those provided by this title or create a cause of action.CommentsClose CommentsPermalink





(c) State Flexibility- No provision of this title shall be construed to preempt--CommentsClose CommentsPermalink





(1) any State law (whether effective before, on, or after the date of the enactment of this title) that specifies a particular monetary amount of compensatory or punitive damages (or the total amount of damages) that may be awarded in a health care lawsuit, regardless of whether such monetary amount is greater or lesser than is provided for under this title, notwithstanding section 4(a); orCommentsClose CommentsPermalink





(2) any defense available to a party in a health care lawsuit under any other provision of State or Federal law.CommentsClose CommentsPermalink

SEC. 111. APPLICABILITY; EFFECTIVE DATE.

This title shall apply to any health care lawsuit brought in a Federal or State court, or subject to an alternative dispute resolution system, that is initiated on or after the date of the enactment of this title, except that any health care lawsuit arising from an injury occurring prior to the date of the enactment of this title shall be governed by the applicable statute of limitations provisions in effect at the time the injury occurred.CommentsClose CommentsPermalink

TITLE II--REPEAL OF INDEPENDENT PAYMENT ADVISORY BOARDCommentsClose CommentsPermalink

SEC. 201. SHORT TITLE.

This title may be cited as the ‘Medicare Decisions Accountability Act of 2012’.CommentsClose CommentsPermalink

SEC. 202. REPEAL OF THE INDEPENDENT PAYMENT ADVISORY BOARD.

Effective as of the enactment of the Patient Protection and Affordable Care Act (Public Law 111-148), sections 3403 and 10320 of such Act (including the amendments made by such sections, but excluding subsection (d) of section 1899A of the Social Security Act, as added and amended by such sections) are repealed, and any provision of law amended by such sections is hereby restored as if such sections had not been enacted into law.CommentsClose CommentsPermalink

TITLE III--HEALTH CARE SAFETY NET ENHANCEMENTCommentsClose CommentsPermalink

SEC. 301. SHORT TITLE.

This title may be cited as the ‘Health Care Safety Net Enhancement Act of 2012’.CommentsClose CommentsPermalink

SEC. 302. PROTECTION FOR EMERGENCY AND RELATED SERVICES FURNISHED PURSUANT TO EMTALA.

Section 224(g) of the Public Health Service Act (42 U.S.C. 233(g)) is amended--CommentsClose CommentsPermalink





(1) in paragraph (4), by striking ‘An entity’ and inserting ‘Subject to paragraph (6), an entity’; andCommentsClose CommentsPermalink





(2) by adding at the end the following:CommentsClose CommentsPermalink





‘(6)(A) For purposes of this section--CommentsClose CommentsPermalink





‘(i) an entity described in subparagraph (B) shall be considered to be an entity described in paragraph (4); andCommentsClose CommentsPermalink





‘(ii) the provisions of this section shall apply to an entity described in subparagraph (B) in the same manner as such provisions apply to an entity described in paragraph (4), except that--CommentsClose CommentsPermalink





‘(I) notwithstanding paragraph (1)(B), the deeming of any entity described in subparagraph (B), or of an officer, governing board member, employee, contractor, or on-call provider of such an entity, to be an employee of the Public Health Service for purposes of this section shall apply only with respect to items and services that are furnished to an individual pursuant to section 1867 of the Social Security Act and to post stabilization services (as defined in subparagraph (D)) furnished to such an individual;CommentsClose CommentsPermalink





‘(II) nothing in paragraph (1)(D) shall be construed as preventing a physician or physician group described in subparagraph (B)(ii) from making the application referred to in such paragraph or as conditioning the deeming of a physician or physician group that makes such an application upon receipt by the Secretary of an application from the hospital or emergency department that employs or contracts with the physician or group, or enlists the physician or physician group as an on-call provider;CommentsClose CommentsPermalink





‘(III) notwithstanding paragraph (3), this paragraph shall apply only with respect to causes of action arising from acts or omissions that occur on or after January 1, 2012;CommentsClose CommentsPermalink





‘(IV) paragraph (5) shall not apply to a physician or physician group described in subparagraph (B)(ii);CommentsClose CommentsPermalink





‘(V) the Attorney General, in consultation with the Secretary, shall make separate estimates under subsection (k)(1) with respect to entities described in subparagraph (B) and entities described in paragraph (4) (other than those described in subparagraph (B)), and the Secretary shall establish separate funds under subsection (k)(2) with respect to such groups of entities, and any appropriations under this subsection for entities described in subparagraph (B) shall be separate from the amounts authorized by subsection (k)(2);CommentsClose CommentsPermalink





‘(VI) notwithstanding subsection (k)(2), the amount of the fund established by the Secretary under such subsection with respect to entities described in subparagraph (B) may exceed a total of $10,000,000 for a fiscal year; andCommentsClose CommentsPermalink





‘(VII) subsection (m) shall not apply to entities described in subparagraph (B).CommentsClose CommentsPermalink





‘(B) An entity described in this subparagraph is--CommentsClose CommentsPermalink





‘(i) a hospital or an emergency department to which section 1867 of the Social Security Act applies; andCommentsClose CommentsPermalink





‘(ii) a physician or physician group that is employed by, is under contract with, or is an on-call provider of such hospital or emergency department, to furnish items and services to individuals under such section.CommentsClose CommentsPermalink





‘(C) For purposes of this paragraph, the term ‘on-call provider’ means a physician or physician group that--CommentsClose CommentsPermalink





‘(i) has full, temporary, or locum tenens staff privileges at a hospital or emergency department to which section 1867 of the Social Security Act applies; andCommentsClose CommentsPermalink





‘(ii) is not employed by or under contract with such hospital or emergency department, but agrees to be ready and available to provide services pursuant to section 1867 of the Social Security Act or post-stabilization services to individuals being treated in the hospital or emergency department with or without compensation from the hospital or emergency department.CommentsClose CommentsPermalink





‘(D) For purposes of this paragraph, the term ‘post stabilization services’ means, with respect to an individual who has been treated by an entity described in subparagraph (B) for purposes of complying with section 1867 of the Social Security Act, services that are--CommentsClose CommentsPermalink





‘(i) related to the condition that was so treated; andCommentsClose CommentsPermalink





‘(ii) provided after the individual is stabilized in order to maintain the stabilized condition or to improve or resolve the condition of the individual.CommentsClose CommentsPermalink





‘(E)(i) Nothing in this paragraph (or in any other provision of this section as such provision applies to entities described in subparagraph (B) by operation of subparagraph (A)) shall be construed as authorizing or requiring the Secretary to make payments to such entities, the budget authority for which is not provided in advance by appropriation Acts.CommentsClose CommentsPermalink





‘(ii) The Secretary shall limit the total amount of payments under this paragraph for a fiscal year to the total amount appropriated in advance by appropriation Acts for such purpose for such fiscal year. If the total amount of payments that would otherwise be made under this paragraph for a fiscal year exceeds such total amount appropriated, the Secretary shall take such steps as may be necessary to ensure that the total amount of payments under this paragraph for such fiscal year does not exceed such total amount appropriated.’.CommentsClose CommentsPermalink

SEC. 303. CONSTITUTIONAL AUTHORITY.

The constitutional authority upon which this title rests is the power of the Congress to provide for the general welfare, to regulate commerce, and to make all laws which shall be necessary and proper for carrying into execution Federal powers, as enumerated in section 8 of article I of the Constitution of the United States.CommentsClose CommentsPermalink

TITLE IV--RESTORING THE APPLICATION OF ANTITRUST LAWS TO HEALTH SECTOR INSURERSCommentsClose CommentsPermalink

SEC. 401. SHORT TITLE.

This title may be cited as the ‘Health Insurance Industry Fair Competition Act of 2012’.CommentsClose CommentsPermalink

SEC. 402. APPLICATION OF THE ANTITRUST LAWS TO THE BUSINESS OF HEALTH INSURANCE.

(a) Amendment to McCarran-Ferguson Act- Section 3 of the Act of March 9, 1945 (15 U.S.C. 1013), commonly known as the McCarran-Ferguson Act, is amended by adding at the end the following:CommentsClose CommentsPermalink





‘(c) Nothing contained in this Act shall modify, impair, or supersede the operation of any of the antitrust laws with respect to the business of health insurance. For purposes of the preceding sentence, the term ‘antitrust laws’ has the meaning given it in subsection (a) of the first section of the Clayton Act, except that such term includes section 5 of the Federal Trade Commission Act to the extent that such section 5 applies to unfair methods of competition. For the purposes of this subsection, the term ‘business of health insurance’ shall--CommentsClose CommentsPermalink





‘(1) mean ‘health insurance coverage’ offered by a ‘health insurance issuer’ as those terms are defined in section 9001 of the Patient Protection and Affordable Care Act, which incorporates by reference and utilizes the definitions included in section 9832 of the Internal Revenue Code (26 U.S.C. 9832); andCommentsClose CommentsPermalink





‘(2) not include--CommentsClose CommentsPermalink





‘(A) life insurance and annuities;CommentsClose CommentsPermalink





‘(B) property or casualty insurance, including but not limited to, automobile, medical malpractice or workers’ compensation insurance; orCommentsClose CommentsPermalink





‘(C) any insurance or benefits defined as ‘excepted benefits’ under section 9832(c) of the Internal Revenue Code (26 U.S.C. 9832(c)), whether offered separately or in combination with products described in subparagraph (A).’.CommentsClose CommentsPermalink





(b) Related Provision- For purposes of section 5 of the Federal Trade Commission Act (15 U.S.C. 45) to the extent such section applies to unfair methods of competition, section 3(c) of the McCarran-Ferguson Act shall apply with respect to the business of health insurance without regard to whether such business is carried on for profit, notwithstanding the definition of ‘Corporation’ contained in section 4 of the Federal Trade Commission Act.CommentsClose CommentsPermalink





(c) Limitation on Class Actions-CommentsClose CommentsPermalink





(1) LIMITATION- No class action may be heard in a Federal or State court on a claim against a person engaged in the business of health insurance for a violation of any of the antitrust laws (as defined in section 3(c) of the Act of March 9, 1945 (15 U.S.C. 1013), commonly known as the McCarran-Ferguson Act).CommentsClose CommentsPermalink





(2) EXEMPTION- Paragraph (1) shall not apply with respect to any action commenced--CommentsClose CommentsPermalink





(A) by the United States or any State; orCommentsClose CommentsPermalink





(B) by a named claimant for an injury only to itself.CommentsClose CommentsPermalink

TITLE V--PROTECTIONS FOR GOOD SAMARITAN HEALTH PROFESSIONALSCommentsClose CommentsPermalink

SEC. 501. SHORT TITLE.

This title may be cited as the ‘Good Samaritan Health Professionals Act of 2012’.CommentsClose CommentsPermalink

SEC. 502. LIMITATION ON LIABILITY FOR VOLUNTEER HEALTH CARE PROFESSIONALS.

(a) In General- Title II of the Public Health Service Act (42 U.S.C. 202 et seq.) is amended by inserting after section 224 the following:CommentsClose CommentsPermalink

‘SEC. 224A. LIMITATION ON LIABILITY FOR VOLUNTEER HEALTH CARE PROFESSIONALS.

‘(a) Limitation on Liability- Except as provided in subsection (b), a health care professional shall not be liable under Federal or State law for any harm caused by an act or omission of the professional if--CommentsClose CommentsPermalink





‘(1) the professional is serving as a volunteer for purposes of responding to a disaster; andCommentsClose CommentsPermalink





‘(2) the act or omission occurs--CommentsClose CommentsPermalink





‘(A) during the period of the disaster, as determined under the laws listed in subsection (e)(1);CommentsClose CommentsPermalink





‘(B) in the health care professional’s capacity as such a volunteer; andCommentsClose CommentsPermalink





‘(C) in a good faith belief that the individual being treated is in need of health care services.CommentsClose CommentsPermalink





‘(b) Exceptions- Subsection (a) does not apply if--CommentsClose CommentsPermalink





‘(1) the harm was caused by an act or omission constituting willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious flagrant indifference to the rights or safety of the individual harmed by the health care professional; orCommentsClose CommentsPermalink





‘(2) the health care professional rendered the health care services under the influence (as determined pursuant to applicable State law) of intoxicating alcohol or an intoxicating drug.CommentsClose CommentsPermalink





‘(c) Standard of Proof- In any civil action or proceeding against a health care professional claiming that the limitation in subsection (a) applies, the plaintiff shall have the burden of proving by clear and convincing evidence the extent to which limitation does not apply.CommentsClose CommentsPermalink





‘(d) Preemption-CommentsClose CommentsPermalink





‘(1) IN GENERAL- This section preempts the laws of a State or any political subdivision of a State to the extent that such laws are inconsistent with this section, unless such laws provide greater protection from liability.CommentsClose CommentsPermalink





‘(2) VOLUNTEER PROTECTION ACT- Protections afforded by this section are in addition to those provided by the Volunteer Protection Act of 1997.CommentsClose CommentsPermalink





‘(e) Definitions- In this section:CommentsClose CommentsPermalink





‘(1) The term ‘disaster’ means--CommentsClose CommentsPermalink





‘(A) a national emergency declared by the President under the National Emergencies Act;CommentsClose CommentsPermalink





‘(B) an emergency or major disaster declared by the President under the Robert T. Stafford Disaster Relief and Emergency Assistance Act; orCommentsClose CommentsPermalink





‘(C) a public health emergency determined by the Secretary under section 319 of this Act.CommentsClose CommentsPermalink





‘(2) The term ‘harm’ includes physical, nonphysical, economic, and noneconomic losses.CommentsClose CommentsPermalink





‘(3) The term ‘health care professional’ means an individual who is licensed, certified, or authorized in one or more States to practice a health care profession.CommentsClose CommentsPermalink





‘(4) The term ‘State’ includes each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Northern Mariana Islands, and any other territory or possession of the United States.CommentsClose CommentsPermalink





‘(5)(A) The term ‘volunteer’ means a health care professional who, with respect to the health care services rendered, does not receive--CommentsClose CommentsPermalink





‘(i) compensation; orCommentsClose CommentsPermalink





‘(ii) any other thing of value in lieu of compensation, in excess of $500 per year.CommentsClose CommentsPermalink





‘(B) For purposes of subparagraph (A), the term ‘compensation’--CommentsClose CommentsPermalink





‘(i) includes payment under any insurance policy or health plan, or under any Federal or State health benefits program; andCommentsClose CommentsPermalink





‘(ii) excludes--CommentsClose CommentsPermalink





‘(I) reasonable reimbursement or allowance for expenses actually incurred;CommentsClose CommentsPermalink





‘(II) receipt of paid leave; andCommentsClose CommentsPermalink





‘(III) receipt of items to be used exclusively for rendering the health services in the health care professional’s capacity as a volunteer described in subsection (a)(1).’.CommentsClose CommentsPermalink





(b) Effective Date-CommentsClose CommentsPermalink





(1) IN GENERAL- This title and the amendment made by subsection (a) shall take effect 90 days after the date of the enactment of this title.CommentsClose CommentsPermalink





(2) APPLICATION- This title applies to any claim for harm caused by an act or omission of a health care professional where the claim is filed on or after the effective date of this title, but only if the harm that is the subject of the claim or the conduct that caused such harm occurred on or after such effective date.CommentsClose CommentsPermalink

Passed the House of Representatives March 22, 2012.CommentsClose CommentsPermalink

Attest:CommentsClose CommentsPermalink

KAREN L. HAAS,CommentsClose CommentsPermalink

Clerk.CommentsClose CommentsPermalink