[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3875 Introduced in House (IH)]
109th CONGRESS
1st Session
H. R. 3875
To improve access to emergency medical services through medical
liability reform and additional Medicare payments.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
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
_______________________________________________________________________
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 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;''.
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