109th CONGRESS
2d Session
S. 2750
To improve access to emergency medical services through medical
liability reform and additional Medicare payments.
IN THE SENATE OF THE UNITED STATES
May 4, 2006
Mr. DEMINT introduced the following bill; which was read twice and referred
to the Committee on Finance
A BILL
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
2006'.
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)(A), the Secretary may deem a physician
who is an on-call physician (as defined in subparagraph (D)) of an entity
described in subparagraph (B)(i) to be an employee of the Public Health
Service for purposes of this section if the physician provides services
described in subclause (II) for the entity pursuant to an arrangement
other than under a contract with the entity;
`(II) 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 physician 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 (E)) furnished to such an individual;
`(III) 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 for which such physician or physician group provides
services described in subclause (II);
`(IV) 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;
`(V) paragraph (5) shall not apply to a physician or physician group
described in subparagraph (B)(ii);
`(VI) 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);
`(VII) 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
`(VIII) 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 provides services described
in subparagraph (A)(ii)(II) for such hospital or department.
`(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 `on-call physician' means
a physician who is on the list of physicians that is maintained by an entity
described in subparagraph (B)(i) pursuant to section 1866(a)(1)(I) of the
Social Security Act.
`(E) 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.
`(F)(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.
`(F) The Secretary may deem a physician who is an on-call physician of an
entity described in subparagraph (B) as an employee of the Public Health
Service for purposes of this section, if the physician was providing items
or services described in subparagraph (D) for the entity pursuant to an
arrangement other than a contract with the entity.'.
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.
(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-
`(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
