H. R. 157
To improve access to emergency medical services, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
January 5, 2011
Mr. SESSIONS introduced the following bill; which was referred to the Committee
on Energy and Commerce
To improve access to emergency medical services, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Health Care Safety Net Enhancement Act of 2011'.
SEC. 2. FINDINGS.
The Congress finds the following:
(1) As noted in the 2006 Institute of Medicine report, `The Future of Emergency
Care', the availability of on-call specialists is an acute problem in emergency
departments and trauma centers requiring attention to identified barriers
such as liability reform.
(2) Also acknowledged in the 2006 IOM report, emergency and trauma care
is delivered in an inherently challenging environment, often requiring emergency
physicians and trauma surgeons to make life-and-death decisions with little
time or information or without a standing relationship with the patient.
For these reasons, physicians providing emergency and trauma care face extraordinary
exposure to medical liability claims, which are far higher than for those
physicians who do not provide such care.
(3) Younger surgeons, who often take the on-call shifts at trauma centers,
are leaving States with the most severe liability problems. For example,
according to the Project on Medical Liability in Pennsylvania, funded by
the Pew Charitable Trust, resident physicians in high-risk fields such as
general surgery and emergency medicine named malpractice costs as the reason
for leaving the State three times more often than any other factor.
(4) Further, an American Hospital Association study found that more than
50 percent of hospitals in medical liability crisis States now have trouble
recruiting physicians, and 40 percent say the liability situation has resulted
in less physician coverage for their emergency departments. The crisis has
even forced the closure of trauma centers in Florida, Mississippi, Nevada,
Pennsylvania, and West Virginia at various times in recent years.
(5) Specialties that have experienced particularly high premium increases,
including neurosurgery, orthopaedics, and general surgery, are also among
those services that emergency patients most frequently require.
(6) According to a report from the General Accountability Office, soaring
medical liability premiums have led specialists to reduce or stop on-call
services to hospital emergency departments, seriously inhibiting patient
access to emergency surgical services.
(7) The Department of Health and Human Services' congressionally created
EMTALA technical advisory group (TAG) recognized that professional liability
insurance is a concern for providers and that having protections would increase
coverage in the emergency department. The TAG recommended that the Department
of Health and Human Services act to support amending the EMTALA statute
to include liability protection for hospitals, physicians, and other licensed
independent practitioners who provide services to patients covered by EMTALA.
SEC. 3. CONSTITUTIONAL AUTHORITY.
The constitutional authority upon which this Act 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.
SEC. 4. PROTECTION FOR EMERGENCY AND RELATED SERVICES FURNISHED PURSUANT
Section 224(g) of the Public Health Service Act (42 U.S.C. 233(g)) is amended--
(1) in paragraph (4), by striking `An entity' and inserting `Subject to
paragraph (6), an entity'; and
(2) by adding at the end the following:
`(6)(A) For purposes of this section--
`(i) an entity described in subparagraph (B) shall be considered to be
an entity described in paragraph (4); and
`(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--
`(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;
`(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;
`(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;
`(IV) paragraph (5) shall not apply to a physician or physician group
described in subparagraph (B)(ii);
`(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);
`(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;
`(VII) subsection (m) shall not apply to entities described in subparagraph
`(B) An entity described in this subparagraph is--
`(i) a hospital or an emergency department to which section 1867 of the
Social Security Act applies; and
`(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.
`(C) For purposes of this paragraph, the term `on-call provider' means a
physician or physician group that--
`(i) has full, temporary, or locum tenens staff privileges at a hospital
or emergency department to which section 1867 of the Social Security Act
`(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.
`(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--
`(i) related to the condition that was so treated; and
`(ii) provided after the individual is stabilized in order to maintain
the stabilized condition or to improve or resolve the condition of the
`(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.
`(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