To improve access to emergency medical services through medical liability reform and additional Medicare payments.

September 22, 2005

Mr. GORDON (for himself and Mr. SESSIONS) introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committee on Ways and Means, 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 improve access to emergency medical services through medical liability reform and additional Medicare payments.

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 `Access to Emergency Medical Services Act of 2005'.

SEC. 2. FINDINGS.

The Congress finds as follows:

(1) Emergency medical care is an essential element of the health care safety net.

(2) Emergency departments are critical in addressing public health issues such as emerging and reemerging infections diseases, bioterrorism, and mass casualty incidences.

(3) The Emergency Medical Treatment and Labor Act (`EMTALA') requires that all patients who come to an emergency department be evaluated and their emergency medical conditions be stabilized, regardless of the patient's ability to pay.

(4) The emergency department is a critical site of service for indigent patients who otherwise do not have access to health care services.

(5) Estimates indicate that 45,000,000 Americans lack health coverage of any kind for an entire year and that tens of millions more Americans go without health coverage for shorter periods of time.

(6) Nationally, more than 35 percent of emergency department patients are uninsured or are Medicaid or SCHIP enrollees.

(7) As a key part of the health care safety net, emergency departments in many of the Nation's communities are under strain.

(8) Strain on emergency departments is due to multiple factors, including the shortage of nurses, a decrease in the total number of community hospitals, and high levels of bad debt incurred as a result of providing care to indigent patients.

(9) Current trends indicate that maintaining access to high-quality emergency care across the nation is at risk.

(10) Sufficient resources must be allocated to emergency care providers to ensure that every American has access to high-quality emergency care.

(11) The Medicare program provides disproportionate share payments for inpatient services to hospitals that serve a disproportionate number of low income and indigent patients.

(12) Providing additional payments for care provided in an emergency department is critical in ensuring beneficiaries have access to high quality emergency services and specialist care in an emergency department.

TITLE I--MEDICAL LIABILITY REFORMS

SEC. 101. 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.

SEC. 102. PROTECTION AGAINST LEGAL LIABILITY FOR EMERGENCY AND RELATED SERVICES FURNISHED TO UNINSURED INDIVIDUALS.

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 in lieu thereof `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, or contractor 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 uninsured individual (as defined in subparagraph (C)) 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;

`(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, 2005;

`(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; and

`(VII) subsection (m) shall not apply to entities described in subparagraph (B).

`(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, or under contract with, such hospital or department to furnish items and services to individuals under such section.

`(C) For purposes of this paragraph, the term `uninsured individual' means an individual who, at the time treatment is provided by an entity described in subparagraph (B) for purposes of complying with section 1867 of the Social Security Act--

`(i) does not have coverage under--

`(I) a group health plan (as defined in section 2791(a)(1));

`(II) part A, B, or (C) of title XVIII of the Social Security Act; or

`(III) a State plan under title XIX of such Act; and

`(ii) does not have health insurance coverage (as defined in section 2791(b)(1)) from any other source.

`(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 individual's condition.

`(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 appropriated.'.

TITLE II--ADDITIONAL MEDICARE PAYMENT

SEC. 201. ADDITIONAL PAYMENTS FOR PHYSICIANS' SERVICES FURNISHED IN AN EMERGENCY DEPARTMENT OF A HOSPITAL OR CRITICAL ACCESS HOSPITAL.

Section 1833 of the Social Security Act (42 U.S.C. 1395l) is amended by adding at the end the following new subsection:

`(v) Additional Payments for Physicians' Services Furnished in Emergency Departments- In the case of physicians' services furnished on or after January 1, 2006, in the emergency department of a hospital or critical access hospital to an individual covered under the insurance program established by this part, in addition to the amount of payment that will otherwise be made for such services under this part, there shall also be paid to the physician or other person (or to an employer or other entity in the cases described in clause (A) of section 1842(b)(6)) from the Federal Supplementary Insurance Trust Fund an amount equal to 10 percent of the payment amount for the service under this part.'.

SEC. 202. INCENTIVE PAYMENTS FOR HOSPITALS MEETING STANDARDS FOR PROMPT ADMISSIONS OF EMERGENCY DEPARTMENT PATIENTS REQUIRING INPATIENT HOSPITAL SERVICES.

(a) In General-

(1) INCENTIVE PAYMENTS- Section 1833(t) of the Social Security Act (42 U.S.C. 1395l(t)) is amended by adding at the end the following:

`(15) INCENTIVE PAYMENTS FOR PROMPT ADMISSIONS OF CERTAIN EMERGENCY DEPARTMENT PATIENTS-

`(A) IN GENERAL-

`(i) ADDITIONAL PAYMENT- Subject to subparagraph (C)(i), in the case of emergency department visits furnished in a calendar quarter beginning on or after January 1, 2007, by a hospital that has transmitted a certification pursuant to clause (ii) for such quarter there shall be paid to the hospital for such visits an amount equal to--

`(I) 10 percent of the amount otherwise payable under this subsection for such visits (which shall be in addition to such payment amount); or

`(II) in the case of visits for which payment may not be made under this subsection by reason of the bundling requirements of section 1886(a)(4), 10 percent of the amount that would have been paid for such visits but for the admission of the patient involved for inpatient hospital services.

`(ii) CERTIFICATION PROCESS- In order to qualify for additional payments under this paragraph for a quarter, a hospital shall transmit to the Secretary (at such time before the beginning of such quarter as the Secretary may require) a certification that, for second preceding quarter, the hospital met the standards established under subparagraph (B).

`(iii) EMERGENCY DEPARTMENT VISITS- For purposes of this paragraph, the term `emergency department visits' means ambulatory patient classification groups 0600, 0601, 0602, 0610, 0611, 0612, and 0620 (and any successor groups as determined by the Secretary).

`(B) STANDARDS FOR PROMPT ADMISSIONS-

`(i) TIMING- Not later than June 30, 2006, the Secretary shall promulgate final regulations (after notice and an opportunity for public comment) establishing standards for prompt admission by a hospital of those individuals presenting to the emergency department of the hospital who are determined at the time an emergency department visit to require inpatient hospital services at the hospital (hereafter in this paragraph referred to as `emergency department patients requiring admission' or `such patients').

`(ii) REQUIREMENTS- The standards under clause (i) shall--

`(I) be designed to substantially reduce or eliminate overcrowding and boarding of patients in such departments and in other outpatient setting adjacent to such departments;

`(II) be expressed as an average of the time elapsed between the decision to admit such patients and the arrival of such patients at their definitive destination in the hospital (and not in an area outside the emergency department for holding such patients before arrival at such definitive destination);

`(III) be applied on a rolling quarterly basis (consistent with the certification process under subparagraph (A)(ii));

`(IV) provide that a hospital may not, for purposes of compliance with such standards, treat as an admission a patient who is deemed to be admitted under this title by reason of being present in the hospital for two consecutive midnight patient censuses;

`(V) provide for exceptions for extraordinary circumstances involving mass casualties;

`(VI) apply to calendar quarters beginning on or after July 1, 2006, for purposes of determining eligibility for additional payments under this paragraph and to calendar quarters beginning on or after January 1, 2007, for purposes of imposing civil money penalties under paragraphs (8) and (9) of section 1128A(a); and

`(VII) be revised from time to time if the Secretary determines that further reductions in such overcrowding and boarding are necessary.

`(C) TREATMENT OF ADDITIONAL PAYMENTS- The additional payments under this paragraph--

`(i) shall be treated as conditional payments that the Secretary may recover through recoupment, offset, or other means (in accordance with procedures and requirements applicable to overpayments under this title) if a hospital is found, upon audit under subparagraph (D)(i), not to meet such standards for a quarter to which a certification relates;

`(ii) shall not be taken into account in determining--

`(I) the copayment for which an individual enrolled under this part is liable under this subsection; or

`(II) any adjustment under subparagraph (A) or (B) of paragraph (9); and

`(iii) shall not be treated as an adjustment under paragraph (2)(E).

`(D) AUDITS OF CERTIFICATIONS; INVESTIGATION OF COMPLAINTS- The Secretary shall establish a process under which--

`(i) the Secretary, an agency with which the Secretary has an agreement under section 1864, or a national accrediting body for the accreditation of hospitals that is recognized under section 1865 conducts periodic audits of certifications made by a hospital to determine whether such hospital met the standards established under subparagraph (B) for the quarter to which a certification relates; and

`(ii) the Secretary or an agency with which the Secretary has an agreement under section 1864--

`(I) investigates complaints that a hospital has engaged in a pattern or practice of failing to comply with such standards; and

`(II) investigates any hospital that has failed to certify under subparagraph (A)(ii) its compliance with such standards for three consecutive calendar quarters to determine whether such hospital has engaged on a pattern or practice of failing to comply with such standards (and for purposes of this subclause, any certification that is determined by an audit under clause (i) to be false shall be treated as a failure to certify for the quarter involved).

Notwithstanding any other provision of law, the identity of any person filing a complaint under subclause (I) shall not be disclosed unless the Secretary determines that such complaint was filed in bad faith.'.

(2) GAO REPORT- Not later than 12 months after the Secretary publishes a final rule establishing or revising standards under subparagraph (B) of section 1833(t)(15) of the Social Security Act (42 U.S.C. 1395l(t)(15)), as added by paragraph (1), the Comptroller General shall submit to the Committee on Finance of the Senate and the Committees on Ways and Means and Energy and Commerce of the House of Representatives a report that--

(A) evaluates whether such standards will achieve the objectives specified in such subparagraph; and

(B) makes recommendations for any changes to such standards that are necessary to achieve such objectives.

(b) Civil Money Penalties for Pattern or Practice of Violating Standards- Section 1128A(a) of the Social Security Act (42 U.S.C. 1320a-7a(a)) is amended--

(1) by striking `or' at the end of paragraph (6);

(2) by inserting after paragraph (7) the following:

`(8) makes a false certification under section 1833(t)(15)(A)(ii); or

`(9) engages in a pattern or practice of failing to meet the standards established under 1833(t)(15)(B);'; and

(3) in the matter after and below paragraph (9) (as added by paragraph (2) of this subsection), by inserting after `prohibited relationship occurs;' the following: `in cases under paragraph (8), an amount not to exceed three times the amount of additional payments under section 1833(t)(15) that are attributable to the false certification; in cases under paragraph (9), an amount not to exceed $250,000 for each quarter in which such pattern or practice is found to exist;'.

END