Text: H.R.5109 — 111th Congress (2009-2010)All Information (Except Text)

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Introduced in House (04/22/2010)


111th CONGRESS
2d Session
H. R. 5109


To establish a tax, regulatory, and legal structure in the United States that encourages small businesses to expand and innovate, and for other purposes.


IN THE HOUSE OF REPRESENTATIVES

April 22, 2010

Mr. Kirk (for himself, Mr. Sessions, Mr. Lee of New York, Mr. Gerlach, Mr. Dent, Mr. Shimkus, Mr. Sensenbrenner, and Mr. Barton of Texas) introduced the following bill; which was referred to the Committee on Ways and Means, and in addition to the Committees on Small Business, Financial Services, Rules, Education and Labor, Energy and Commerce, the Judiciary, Oversight and Government Reform, and Appropriations, 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 establish a tax, regulatory, and legal structure in the United States that encourages small businesses to expand and innovate, 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; table of contents.

(a) Short title.—This Act may be cited as the “Small Business Bill of Rights”.

(b) Table of contents.—The table of contents for this Act is as follows:


Sec. 1. Short title; table of contents.

Sec. 2. Purpose.

Sec. 101. Extension of alternative minimum tax relief for nonrefundable personal credits.

Sec. 102. Extension of increased alternative minimum tax exemption amount.

Sec. 111. Extension of reduction in taxes on dividends and capital gains.

Sec. 112. Temporary reduction of capital gains tax on qualified small business stock.

Sec. 121. Increase in amount allowed as deduction for start-up expenditures.

Sec. 131. GAO to certify no burden on small business concerns.

Sec. 132. Exemption from taxes imposed after the date of enactment of this Act.

Sec. 201. Limitation on regulations.

Sec. 301. Postponement of termination of estate tax and generation-skipping transfer taxes.

Sec. 401. Findings.

Sec. 402. National Labor Relations Act.

Sec. 403. Regulations.

Sec. 501. Findings and purpose.

Sec. 502. Encouraging speedy resolution of claims.

Sec. 503. Compensating patient injury.

Sec. 504. Maximizing patient recovery.

Sec. 505. Additional health benefits.

Sec. 506. Punitive damages.

Sec. 507. Authorization of payment of future damages to claimants in health care lawsuits.

Sec. 508. Definitions.

Sec. 509. Effect on other laws.

Sec. 510. State flexibility and protection of States’ rights.

Sec. 511. Applicability; effective date.

Sec. 512. Sense of congress.

Sec. 513. Cooperative governing of individual health insurance coverage.

Sec. 514. SECA tax deduction for health insurance costs.

Sec. 601. E-verify program made permanent.

Sec. 602. Verification under E-verify program made possible over telephone.

Sec. 603. Grace period to correct paperwork.

Sec. 701. Limits on patent legislation.

Sec. 702. Expedited patent filing procedures for small business concerns.

Sec. 801. Consumer incentives to purchase advanced technology vehicles.

Sec. 811. Make permanent the tax credit for residential energy-efficient property.

Sec. 812. Make permanent the energy efficiency credit for existing homes.

Sec. 813. Make permanent the energy efficiency commercial buildings deduction.

Sec. 901. Guidance and advice about new rules.

Sec. 1001. Administration prohibited from capping executive compensation.

Sec. 1002. Reduction of regulatory burden.

Sec. 1003. Litigation burden on small business concerns to be limited to current levels.

Sec. 1004. Expansion of volunteer representation and benchmark reports.

Sec. 1005. Mentoring and networking.

Sec. 1006. Name of program changed to SCORE.

Sec. 1007. Authorization of appropriations.

Sec. 1011. Small business goals.

Sec. 1012. Agency goal negotiation.

Sec. 1013. Procedures and methods for goal achievement.

Sec. 1014. Reporting requirements.

Sec. 1021. Definitions of bundling of contract requirements.

Sec. 1022. Justification.

Sec. 1023. Appeals.

Sec. 1024. Third-party review.

Sec. 1031. Good faith compliance with subcontracting plans.

Sec. 1032. Limitations on subcontracting.

Sec. 1033. Criminal violations.

Sec. 1101. Transfer of unobligated stimulus funds.

Sec. 1201. Repeal of the Troubled Asset Relief Program.

Sec. 1301. Definitions.

SEC. 2. Purpose.

The purpose of this Act is to do the following:

(1) Protect secret ballots in union elections.

(2) Lower health costs with lawsuit reforms and interstate competition.

(3) Lower energy costs with credits for efficient equipment and hybrids.

(4) Permit children to continue business with low/no death tax.

(5) Exempt small businesses from capital gains tax for 10 years.

(6) Make immigration laws easy to comply with.

(7) Create a Patent Office fast lane for small business innovation.     

(8) SBA to limit Federal paperwork for small businesses to 200 hours annually.     

(9) Prevent AMT from taxing the middle class.

(10) Reduce deficit to encourage jobs and improve credit.

SEC. 101. Extension of alternative minimum tax relief for nonrefundable personal credits.

(a) In general.—Paragraph (2) of section 26(a) of the Internal Revenue Code of 1986 (relating to special rule for taxable years 2000 through 2009) is amended—

(1) by striking “or 2009” and inserting “2009, 2010, or 2011”, and

(2) by striking “2009” in the heading thereof and inserting “2011”.

(b) Effective date.—The amendments made by this section shall apply to taxable years beginning after December 31, 2009.

SEC. 102. Extension of increased alternative minimum tax exemption amount.

(a) In general.—Subparagraphs (A) and (B) of section 55(d)(1) of the Internal Revenue Code of 1986 (relating to exemption amount) are both amended by striking “2009” and inserting “2009, 2010, and 2011”.

(b) Effective date.—The amendments made by this section shall apply to taxable years beginning after December 31, 2009.

SEC. 111. Extension of reduction in taxes on dividends and capital gains.

Section 303 of the Jobs and Growth Tax Relief Reconciliation Act of 2003 is amended by striking “December 31, 2010” and inserting “December 31, 2011”.

SEC. 112. Temporary reduction of capital gains tax on qualified small business stock.

(a) Temporary reduced rate for qualified small business stock.—Subparagraph (A)(ii) of section 1(h)(4) of the Internal Revenue Code of 1986 is amended to read as follows:

“(ii) in the case of any taxable year beginning after December 31, 2020, section 1202 gain, over”.

(b) Effective date.—The amendment made by subsection (a) shall apply to taxable years beginning after December 31, 2010.

SEC. 121. Increase in amount allowed as deduction for start-up expenditures.

(a) In general.—Subsection (b) of section 195 of the Internal Revenue Code of 1986 is amended by adding at the end the following:

“(3) SPECIAL RULE FOR TAXABLE YEARS BEGINNING IN 2009, 2010, OR 2011.—In the case of a taxable year beginning in 2009, 2010, or 2011, paragraph (1)(A)(ii) shall be applied—

“(A) by substituting ‘$20,000’ for ‘$5,000’; and

“(B) by substituting ‘$75,000’ for ‘$50,000’.”

(b) Effective date.—The amendments made by this section shall apply to amounts paid or incurred in taxable years beginning after the date of the enactment of this Act.

SEC. 131. GAO to certify no burden on small business concerns.

Clause 3 of Rule XIII of the Rules of the House of Representatives is amended by adding at the end the following new paragraph:

“(i)(1) Each report of a committee on a public bill or a public joint resolution shall contain a statement by the Comptroller General that certifies that such bill or resolution will not cause an increase in the number of unemployed individuals in the United States.

“(2) A bill or joint resolution that does not contain a statement required under subparagraph (1) may not be considered as passed or agreed to unless so determined by a vote of not less than three-fifths of the Members voting, a quorum being present.”.

SEC. 132. Exemption from taxes imposed after the date of enactment of this Act.

A small business concern is exempt from any amendment to the Internal Revenue Code of 1986 enacted after the date of enactment of this Act that would result in any increase in the amount of Federal taxes due from that small business concern.

SEC. 201. Limitation on regulations.

(a) In general.—The Administrator, acting through the Chief Counsel of the Office of Advocacy of the Small Business Administration, is authorized to provide such support as may be necessary with regard to any Federal regulation to ensure that a small business concern is not required to expend more than a total of 200 man-hours annually on applications, filings, petitions, or other paperwork submitted to Federal departments or agencies.

(b) Commonly required information form.—Support provided under subsection (a) shall include the establishment of a form on the public Internet Web site of the Administrator, by means of which a small business concern may provide to the Administrator information that the Administrator determines to be frequently required as part of any applications, filings, petitions, or other paperwork described in subsection (a). The Administrator shall use information so provided to assist in the expedited completion of such applications, filings, petitions, or other paperwork.

SEC. 301. Postponement of termination of estate tax and generation-skipping transfer taxes.

(a) Application of EGTRRA Sunset.—Section 901(a)(2) of title IX of the Economic Growth and Tax Relief Reconciliation Act of 2001 is amended by striking “December 31, 2010” and inserting “December 31, 2015”.

(b) Effective date.—The amendments made by this section shall apply to the estates of decedents dying, gifts made, or generation-skipping transfers, after December 31, 2010.

SEC. 401. Findings.

Congress finds that—

(1) the right of employees under the National Labor Relations Act to choose whether to be represented by a labor organization by way of secret ballot election conducted by the National Labor Relations Board is among the most important protections afforded under Federal labor law;

(2) the right of employees to choose by secret ballot is the only method that ensures a choice free of coercion, intimidation, irregularity, or illegality; and

(3) the recognition of a labor organization by using a private agreement, rather than a secret ballot election overseen by the National Labor Relations Board, threatens the freedom of employees to choose whether to be represented by a labor organization and severely limits the ability of the National Labor Relations Board to ensure the protection of workers.

SEC. 402. National Labor Relations Act.

(a) Recognition of Representative.—

(1) IN GENERAL.—Section 8(a)(2) of the National Labor Relations Act (29 U.S.C. 158(a)(2)) is amended by inserting before the colon the following: “or to recognize or bargain collectively with a labor organization that has not been selected by a majority of such employees in a secret ballot election conducted by the National Labor Relations Board in accordance with section 9”.

(2) APPLICATION.—The amendment made by subsection (a) shall not apply to collective bargaining relationships in which a labor organization with majority support was lawfully recognized before the date of the enactment of this Act.

(b) Election Required.—

(1) IN GENERAL.—Section 8(b) of the National Labor Relations Act (29 U.S.C. 158(b)) is amended—

(A) by striking “and” at the end of paragraph (6);

(B) by striking the period at the end of paragraph (7) and inserting “; and”; and

(C) by adding at the end the following:

“(8) to cause or attempt to cause an employer to recognize or bargain collectively with a representative of a labor organization that has not been selected by a majority of such employees in a secret ballot election conducted by the National Labor Relations Board in accordance with section 9.”.

(2) APPLICATION.—The amendment made by paragraph (1) shall not apply to collective bargaining relationships that were recognized before the date of the enactment of this Act.

(c) Secret ballot election.—Section 9(a) of the National Labor Relations Act (29 U.S.C. 159(a)), is amended—

(1) by inserting “(1)” after “(a)”;

(2) by inserting after “designated or selected” the following: “by a secret ballot election conducted by the National Labor Relations Board in accordance with this section”; and

(3) by adding at the end the following:

“(2) The secret ballot election requirement of paragraph (1) shall not apply to collective bargaining relationships that were recognized before the date of the enactment of the Small Business Bill of Rights.”.

SEC. 403. Regulations.

Not later than 6 months after the date of the enactment of this Act, the National Labor Relations Board shall review and revise all regulations promulgated before such date to implement the amendments made in this Act to the National Labor Relations Act.

SEC. 501. Findings and purpose.

(a) Findings.—

(1) EFFECT ON HEALTH CARE ACCESS AND COSTS.—Congress finds that our current civil justice system is adversely affecting patient access to health care services, better patient care, and cost-efficient health care, in that the health care liability system is a costly and ineffective mechanism for resolving claims of health care liability and compensating injured patients, and is a deterrent to the sharing of information among health care professionals which impedes efforts to improve patient safety and quality of care.

(2) EFFECT ON INTERSTATE COMMERCE.—Congress finds that the health care and insurance industries are industries affecting interstate commerce and the health care liability litigation systems existing throughout the United States are activities that affect interstate commerce by contributing to the high costs of health care and premiums for health care liability insurance purchased by health care system providers.

(3) EFFECT ON FEDERAL SPENDING.—Congress finds that the health care liability litigation systems existing throughout the United States have a significant effect on the amount, distribution, and use of Federal funds because of—

(A) the large number of individuals who receive health care benefits under programs operated or financed by the Federal Government;

(B) the large number of individuals who benefit because of the exclusion from Federal taxes of the amounts spent to provide them with health insurance benefits; and

(C) the large number of health care providers who provide items or services for which the Federal Government makes payments.

(b) Purpose.—It is the purpose of this title to implement reasonable, comprehensive, and effective health care liability reforms designed to—

(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;

(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;

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

(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; and

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

SEC. 502. 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—

(1) upon proof of fraud;

(2) intentional concealment; or

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

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.

SEC. 503. 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).

(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.

(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.

(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.

SEC. 504. 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:

(1) 40 percent of the first $50,000 recovered by all such claimants.

(2) 3313 percent of the next $50,000 recovered by all such claimants.

(3) 25 percent of the next $500,000 recovered by all such claimants.

(4) 15 percent of any amount by which the recovery by all such claimants is in excess of $600,000.

(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.

SEC. 505. Additional health benefits.

In any health care lawsuit involving injury or wrongful death, any party may introduce evidence of collateral source benefits. If a party elects to introduce such evidence, any opposing party may introduce evidence of any amount paid or contributed or reasonably likely to be paid or contributed in the future by or on behalf of the opposing party to secure the right to such collateral source benefits. No provider of collateral source benefits shall recover any amount against the claimant or receive any lien or credit against the claimant’s recovery or be equitably or legally subrogated to the right of the claimant in a health care lawsuit involving injury or wrongful death. This section shall apply to any health care lawsuit that is settled as well as a health care lawsuit that is resolved by a fact finder. This section shall not apply to section 1862(b) of the Social Security Act (42 U.S.C. 1395y(b)) or section 1902(a)(25) of such Act (42 U.S.C. 1396a(a)(25)).

SEC. 506. 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 for which 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—

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

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

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.

(b) Determining Amount of Punitive Damages.—

(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:

(A) The severity of the harm caused by the conduct of such party.

(B) The duration of the conduct or any concealment of it by such party.

(C) The profitability of the conduct to such party.

(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.

(E) Any criminal penalties imposed on such party, as a result of the conduct complained of by the claimant.

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

(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.

(c) No Punitive Damages for Products That Comply With FDA Standards.—

(1) LIABILITY OF CERTAIN MANUFACTURERS, DISTRIBUTORS, AND SUPPLIERS.—

(A) IN GENERAL.—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—

(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; and

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

(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.

(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.

(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.

(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.

(4) EXCEPTION.—Paragraph (1) shall not apply with respect to any health care lawsuit in which—

(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; or

(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.

SEC. 507. 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 any health care lawsuit, the court may be guided by the Uniform Periodic Payment of Judgments Act promulgated by the National Conference of Commissioners on Uniform State Laws.

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

SEC. 508. Definitions.

In this title:

(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.

(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.

(3) COLLATERAL SOURCE BENEFITS.—The term “collateral source benefits” means any amount paid or reasonably likely to be paid in the future to, or on behalf of, the claimant, or any service, product, or other benefit provided or reasonably likely to be provided in the future to, or on behalf of, the claimant, as a result of the injury or wrongful death, pursuant to—

(A) any State or Federal health, sickness, income-disability, accident, or workers’ compensation law;

(B) any health, sickness, income-disability, or accident insurance that provides health benefits or income-disability coverage;

(C) any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the cost of medical, hospital, dental, or income-disability benefits; and

(D) any other publicly or privately funded program.

(4) 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.

(5) 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.

(6) 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.

(7) 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.

(8) 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.

(9) 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.

(10) 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.

(11) 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.

(12) 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.

(13) 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.

(14) 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.

(15) 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.

(16) 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.

(17) 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.

(18) STATE.—The term “State” means each of the several States, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, American Samoa, the Commonwealth of 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.

SEC. 509. Effect on other laws.

(a) Vaccine Injury.—

(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—

(A) title V of this Act does not affect the application of the rule of law applicable to such an action; and

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

(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 title V of this Act or otherwise applicable law (as determined under this title) will apply to such aspect of such action.

(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.

SEC. 510. 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—

(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 title V of this Act; or

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

(b) Protection of States’ rights and other laws.—

(1) IN GENERAL.—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.

(2) LAWS THAT PROVIDE GREATER PROTECTIONS.—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.

(c) State flexibility.—No provision of this title shall be construed to preempt—

(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 503(a); or

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

SEC. 511. 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.

SEC. 512. Sense of congress.

It is the sense of Congress that a health insurer should be liable for damages for harm caused when it makes a decision as to what care is medically necessary and appropriate.

SEC. 513. Cooperative governing of individual health insurance coverage.

(a) In general.—Title XXVII of the Public Health Service Act (42 U.S.C. 300gg et seq.) is amended by adding at the end the following new part:

“PART DCooperative Governing of Individual Health Insurance Coverage

“SEC. 2795. Definitions.

“In this part:

“(1) PRIMARY STATE.—The term ‘primary State’ means, with respect to individual health insurance coverage offered by a health insurance issuer, the State designated by the issuer as the State whose covered laws shall govern the health insurance issuer in the sale of such coverage under this part. An issuer, with respect to a particular policy, may only designate one such State as its primary State with respect to all such coverage it offers. Such an issuer may not change the designated primary State with respect to individual health insurance coverage once the policy is issued, except that such a change may be made upon renewal of the policy. With respect to such designated State, the issuer is deemed to be doing business in that State.

“(2) SECONDARY STATE.—The term ‘secondary State’ means, with respect to individual health insurance coverage offered by a health insurance issuer, any State that is not the primary State. In the case of a health insurance issuer that is selling a policy in, or to a resident of, a secondary State, the issuer is deemed to be doing business in that secondary State.

“(3) HEALTH INSURANCE ISSUER.—The term ‘health insurance issuer’ has the meaning given such term in section 2791(b)(2), except that such an issuer must be licensed in the primary State and be qualified to sell individual health insurance coverage in that State.

“(4) INDIVIDUAL HEALTH INSURANCE COVERAGE.—The term ‘individual health insurance coverage’ means health insurance coverage offered in the individual market, as defined in section 2791(e)(1).

“(5) APPLICABLE STATE AUTHORITY.—The term ‘applicable State authority’ means, with respect to a health insurance issuer in a State, the State insurance commissioner or official or officials designated by the State to enforce the requirements of this title for the State with respect to the issuer.

“(6) HAZARDOUS FINANCIAL CONDITION.—The term ‘hazardous financial condition’ means that, based on its present or reasonably anticipated financial condition, a health insurance issuer is unlikely to be able—

“(A) to meet obligations to policyholders with respect to known claims and reasonably anticipated claims; or

“(B) to pay other obligations in the normal course of business.

“(7) COVERED LAWS.—

“(A) IN GENERAL.—The term ‘covered laws’ means the laws, rules, regulations, agreements, and orders governing the insurance business pertaining to—

“(i) individual health insurance coverage issued by a health insurance issuer;

“(ii) the offer, sale, rating (including medical underwriting), renewal, and issuance of individual health insurance coverage to an individual;

“(iii) the provision to an individual in relation to individual health insurance coverage of health care and insurance-related services;

“(iv) the provision to an individual in relation to individual health insurance coverage of management, operations, and investment activities of a health insurance issuer; and

“(v) the provision to an individual in relation to individual health insurance coverage of loss control and claims administration for a health insurance issuer with respect to liability for which the issuer provides insurance.

“(B) EXCEPTION.—Such term does not include any law, rule, regulation, agreement, or order governing the use of care or cost management techniques, including any requirement related to provider contracting, network access or adequacy, health care data collection, or quality assurance.

“(8) STATE.—The term ‘State’ means the 50 States and includes the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.

“(9) UNFAIR CLAIMS SETTLEMENT PRACTICES.—The term ‘unfair claims settlement practices’ means only the following practices:

“(A) Knowingly misrepresenting to claimants and insured individuals relevant facts or policy provisions relating to coverage at issue.

“(B) Failing to acknowledge with reasonable promptness pertinent communications with respect to claims arising under policies.

“(C) Failing to adopt and implement reasonable standards for the prompt investigation and settlement of claims arising under policies.

“(D) Failing to effectuate prompt, fair, and equitable settlement of claims submitted in which liability has become reasonably clear.

“(E) Refusing to pay claims without conducting a reasonable investigation.

“(F) Failing to affirm or deny coverage of claims within a reasonable period of time after having completed an investigation related to those claims.

“(G) A pattern or practice of compelling insured individuals or their beneficiaries to institute suits to recover amounts due under its policies by offering substantially less than the amounts ultimately recovered in suits brought by them.

“(H) A pattern or practice of attempting to settle or settling claims for less than the amount that a reasonable person would believe the insured individual or his or her beneficiary was entitled by reference to written or printed advertising material accompanying or made part of an application.

“(I) Attempting to settle or settling claims on the basis of an application that was materially altered without notice to, or knowledge or consent of, the insured.

“(J) Failing to provide forms necessary to present claims within 15 calendar days of a request with reasonable explanations regarding their use.

“(K) Attempting to cancel a policy in less time than that prescribed in the policy or by the law of the primary State.

“(10) FRAUD AND ABUSE.—The term ‘fraud and abuse’ means an act or omission committed by a person who, knowingly and with intent to defraud, commits, or conceals any material information concerning, one or more of the following:

“(A) Presenting, causing to be presented, or preparing with knowledge or belief that it will be presented to or by an insurer, a reinsurer, broker or its agent, false information as part of, in support of or concerning a fact material to one or more of the following:

“(i) An application for the issuance or renewal of an insurance policy or reinsurance contract.

“(ii) The rating of an insurance policy or reinsurance contract.

“(iii) A claim for payment or benefit pursuant to an insurance policy or reinsurance contract.

“(iv) Premiums paid on an insurance policy or reinsurance contract.

“(v) Payments made in accordance with the terms of an insurance policy or reinsurance contract.

“(vi) A document filed with the commissioner or the chief insurance regulatory official of another jurisdiction.

“(vii) The financial condition of an insurer or reinsurer.

“(viii) The formation, acquisition, merger, reconsolidation, dissolution, or withdrawal from one or more lines of insurance or reinsurance in all or part of a State by an insurer or reinsurer.

“(ix) The issuance of written evidence of insurance.

“(x) The reinstatement of an insurance policy.

“(B) Solicitation or acceptance of new or renewal insurance risks on behalf of an insurer, reinsurer, or other person engaged in the business of insurance by a person who knows or should know that the insurer or other person responsible for the risk is insolvent at the time of the transaction.

“(C) Transaction of the business of insurance in violation of laws requiring a license, certificate of authority, or other legal authority for the transaction of the business of insurance.

“(D) Attempt to commit, aiding or abetting in the commission of, or conspiracy to commit the acts or omissions specified in this paragraph.

“SEC. 2796. Application of law.

“(a) In general.—The covered laws of the primary State shall apply to individual health insurance coverage offered by a health insurance issuer in the primary State and in any secondary State, but only if the coverage and issuer comply with the conditions of this section with respect to the offering of coverage in any secondary State.

“(b) Exemptions from covered laws in a secondary State.—Except as provided in this section, a health insurance issuer with respect to its offer, sale, rating (including medical underwriting), renewal, and issuance of individual health insurance coverage in any secondary State is exempt from any covered laws of the secondary State (and any rules, regulations, agreements, or orders sought or issued by such State under or related to such covered laws) to the extent that such laws would—

“(1) make unlawful, or regulate, directly or indirectly, the operation of the health insurance issuer operating in the secondary State, except that any secondary State may require such an issuer—

“(A) to pay, on a nondiscriminatory basis, applicable premium and other taxes (including high-risk-pool assessments) which are levied on insurers and surplus lines insurers, brokers, or policyholders under the laws of the State;

“(B) to register with and designate the State insurance commissioner as its agent solely for the purpose of receiving service of legal documents or process;

“(C) to submit to an examination of its financial condition by the State insurance commissioner in any State in which the issuer is doing business to determine the issuer’s financial condition, if—

“(i) the State insurance commissioner of the primary State has not done an examination within the period recommended by the National Association of Insurance Commissioners; and

“(ii) any such examination is conducted in accordance with the examiners’ handbook of the National Association of Insurance Commissioners and is coordinated to avoid unjustified duplication and unjustified repetition;

“(D) to comply with a lawful order issued—

“(i) in a delinquency proceeding commenced by the State insurance commissioner if there has been a finding of financial impairment under subparagraph (C); or

“(ii) in a voluntary dissolution proceeding;

“(E) to comply with an injunction issued by a court of competent jurisdiction, upon a petition by the State insurance commissioner alleging that the issuer is in hazardous financial condition;

“(F) to participate, on a nondiscriminatory basis, in any insurance insolvency guaranty association or similar association to which a health insurance issuer in the State is required to belong;

“(G) to comply with any State law regarding fraud and abuse (as defined in section 2795(10)), except that if the State seeks an injunction regarding the conduct described in this subparagraph, such injunction must be obtained from a court of competent jurisdiction;

“(H) to comply with any State law regarding unfair claims settlement practices (as defined in section 2795(9)); or

“(I) to comply with the applicable requirements for independent review under section 2798 with respect to coverage offered in the State;

“(2) require any individual health insurance coverage issued by the issuer to be countersigned by an insurance agent or broker residing in that secondary State; or

“(3) otherwise discriminate against the issuer issuing insurance in both the primary State and in any secondary State.

“(c) Clear and conspicuous disclosure.—A health insurance issuer shall provide the following notice, in 12-point bold type, in any insurance coverage offered in a secondary State under this part by such a health insurance issuer and at renewal of the policy, with the 5 blank spaces therein being appropriately filled with the name of the health insurance issuer, the name of primary State, the name of the secondary State, the name of the secondary State, and the name of the secondary State, respectively, for the coverage concerned:

“(d) Prohibition on certain reclassifications and premium increases.—

“(1) IN GENERAL.—For purposes of this section, a health insurance issuer that provides individual health insurance coverage to an individual under this part in a primary or secondary State may not upon renewal—

“(A) move or reclassify the individual insured under the health insurance coverage from the class such individual is in at the time of issue of the contract based on the health-status-related factors of the individual; or

“(B) increase the premiums assessed the individual for such coverage based on a health-status-related factor or change of a health-status-related factor or the past or prospective claim experience of the insured individual.

“(2) CONSTRUCTION.—Nothing in paragraph (1) shall be construed to prohibit a health insurance issuer—

“(A) from terminating or discontinuing coverage or a class of coverage in accordance with subsections (b) and (c) of section 2742;

“(B) from raising premium rates for all policyholders within a class based on claims experience;

“(C) from changing premiums or offering discounted premiums to individuals who engage in wellness activities at intervals prescribed by the issuer, if such premium changes or incentives—

“(i) are disclosed to the consumer in the insurance contract;

“(ii) are based on specific wellness activities that are not applicable to all individuals; and

“(iii) are not obtainable by all individuals to whom coverage is offered;

“(D) from reinstating lapsed coverage; or

“(E) from retroactively adjusting the rates charged an insured individual if the initial rates were set based on material misrepresentation by the individual at the time of issue.

“(e) Prior offering of policy in primary State.—A health insurance issuer may not offer for sale individual health insurance coverage in a secondary State unless that coverage is currently offered for sale in the primary State.

“(f) Licensing of agents or brokers for health insurance issuers.—Any State may require that a person acting, or offering to act, as an agent or broker for a health insurance issuer with respect to the offering of individual health insurance coverage obtain a license from that State, with commissions or other compensation subject to the provisions of the laws of that State, except that a State may not impose any qualification or requirement which discriminates against a nonresident agent or broker.

“(g) Documents for submission to State insurance commissioner.—Each health insurance issuer issuing individual health insurance coverage in both primary and secondary States shall submit—

“(1) to the insurance commissioner of each State in which it intends to offer such coverage, before it may offer individual health insurance coverage in such State—

“(A) a copy of the plan of operation or feasibility study or any similar statement of the policy being offered and its coverage (which shall include the name of its primary State and its principal place of business);

“(B) written notice of any change in its designation of its primary State; and

“(C) written notice from the issuer of the issuer’s compliance with all the laws of the primary State; and

“(2) to the insurance commissioner of each secondary State in which it offers individual health insurance coverage, a copy of the issuer’s quarterly financial statement submitted to the primary State, which statement shall be certified by an independent public accountant and contain a statement of opinion on loss and loss adjustment expense reserves made by—

“(A) a member of the American Academy of Actuaries; or

“(B) a qualified loss reserve specialist.

“(h) Power of courts To enjoin conduct.—Nothing in this section shall be construed to affect the authority of any Federal or State court to enjoin—

“(1) the solicitation or sale of individual health insurance coverage by a health insurance issuer to any person or group who is not eligible for such insurance; or

“(2) the solicitation or sale of individual health insurance coverage that violates the requirements of the law of a secondary State which are described in subparagraphs (A) through (H) of section 2796(b)(1).

“(i) Power of Secondary States To Take Administrative Action.—Nothing in this section shall be construed to affect the authority of any State to enjoin conduct in violation of that State’s laws described in section 2796(b)(1).

“(j) State powers To enforce State laws.—

“(1) IN GENERAL.—Subject to the provisions of subsection (b)(1)(G) (relating to injunctions) and paragraph (2), nothing in this section shall be construed to affect the authority of any State to make use of any of its powers to enforce the laws of such State with respect to which a health insurance issuer is not exempt under subsection (b).

“(2) COURTS OF COMPETENT JURISDICTION.—If a State seeks an injunction regarding the conduct described in paragraphs (1) and (2) of subsection (h), such injunction must be obtained from a Federal or State court of competent jurisdiction.

“(k) States’ authority To sue.—Nothing in this section shall affect the authority of any State to bring action in any Federal or State court.

“(l) Generally applicable laws.—Nothing in this section shall be construed to affect the applicability of State laws generally applicable to persons or corporations.

“(m) Guaranteed Availability of Coverage to HIPAA-Eligible Individuals.—To the extent that a health insurance issuer is offering coverage in a primary State that does not accommodate residents of secondary States or does not provide a working mechanism for residents of a secondary State, and the issuer is offering coverage under this part in such secondary State which has not adopted a qualified high-risk pool as its acceptable alternative mechanism (as defined in section 2744(c)(2)), the issuer shall, with respect to any individual health insurance coverage offered in a secondary State under this part, comply with the guaranteed availability requirements for eligible individuals in section 2741.

“SEC. 2797. Primary State must meet Federal floor before issuer may sell into secondary States.

“A health insurance issuer may not offer, sell, or issue individual health insurance coverage in a secondary State if the State insurance commissioner does not use a risk-based capital formula for the determination of capital and surplus requirements for all health insurance issuers.

“SEC. 2798. Independent external appeals procedures.

“(a) Right to External Appeal.—A health insurance issuer may not offer, sell, or issue individual health insurance coverage in a secondary State under the provisions of this title unless—

“(1) both the secondary State and the primary State have legislation or regulations in place establishing an independent review process for individuals who are covered by individual health insurance coverage, or

“(2) in any case in which the requirements of subparagraph (A) are not met with respect to the either of such States, the issuer provides an independent review mechanism substantially identical (as determined by the applicable State authority of such State) to that prescribed in the ‘Health Carrier External Review Model Act’ of the National Association of Insurance Commissioners for all individuals who purchase insurance coverage under the terms of this part, except that, under such mechanism, the review is conducted by an independent medical reviewer, or a panel of such reviewers, with respect to whom the requirements of subsection (b) are met.

“(b) Qualifications of Independent Medical Reviewers.—In the case of any independent review mechanism referred to in subsection (a)(2)—

“(1) IN GENERAL.—In referring a denial of a claim to an independent medical reviewer, or to any panel of such reviewers, to conduct independent medical review, the issuer shall ensure that—

“(A) each independent medical reviewer meets the qualifications described in paragraphs (2) and (3);

“(B) with respect to each review, each reviewer meets the requirements of paragraph (4) and the reviewer, or at least 1 reviewer on the panel, meets the requirements described in paragraph (5); and

“(C) compensation provided by the issuer to each reviewer is consistent with paragraph (6).

“(2) LICENSURE AND EXPERTISE.—Each independent medical reviewer shall be a physician (allopathic or osteopathic) or health care professional who—

“(A) is appropriately credentialed or licensed in 1 or more States to deliver health care services; and

“(B) typically treats the condition, makes the diagnosis, or provides the type of treatment under review.

“(3) INDEPENDENCE.—

“(A) IN GENERAL.—Subject to subparagraph (B), each independent medical reviewer in a case shall—

“(i) not be a related party (as defined in paragraph (7));

“(ii) not have a material familial, financial, or professional relationship with such a party; and

“(iii) not otherwise have a conflict of interest with such a party (as determined under regulations).

“(B) EXCEPTION.—Nothing in subparagraph (A) shall be construed to—

“(i) prohibit an individual, solely on the basis of affiliation with the issuer, from serving as an independent medical reviewer if—

“(I) a nonaffiliated individual is not reasonably available;

“(II) the affiliated individual is not involved in the provision of items or services in the case under review;

“(III) the fact of such an affiliation is disclosed to the issuer and the enrollee (or authorized representative) and neither party objects; and

“(IV) the affiliated individual is not an employee of the issuer and does not provide services exclusively or primarily to or on behalf of the issuer;

“(ii) prohibit an individual who has staff privileges at the institution where the treatment involved takes place from serving as an independent medical reviewer merely on the basis of such affiliation if the affiliation is disclosed to the issuer and the enrollee (or authorized representative), and neither party objects; or

“(iii) prohibit receipt of compensation by an independent medical reviewer from an entity if the compensation is provided consistent with paragraph (6).

“(4) PRACTICING HEALTH CARE PROFESSIONAL IN SAME FIELD.—

“(A) IN GENERAL.—In a case involving treatment, or the provision of items or services—

“(i) by a physician, a reviewer shall be a practicing physician (allopathic or osteopathic) of the same or similar specialty, as a physician who, acting within the appropriate scope of practice within the State in which the service is provided or rendered, typically treats the condition, makes the diagnosis, or provides the type of treatment under review; or

“(ii) by a nonphysician health care professional, the reviewer, or at least 1 member of the review panel, shall be a practicing nonphysician health care professional of the same or similar specialty as the nonphysician health care professional who, acting within the appropriate scope of practice within the State in which the service is provided or rendered, typically treats the condition, makes the diagnosis, or provides the type of treatment under review.

“(B) PRACTICING DEFINED.—For purposes of this paragraph, the term ‘practicing’ means, with respect to an individual who is a physician or other health care professional, that the individual provides health care services to individual patients on average at least 2 days per week.

“(5) PEDIATRIC EXPERTISE.—In the case of an external review relating to a child, a reviewer shall have expertise under paragraph (2) in pediatrics.

“(6) LIMITATIONS ON REVIEWER COMPENSATION.—Compensation provided by the issuer to an independent medical reviewer in connection with a review under this section shall—

“(A) not exceed a reasonable level; and

“(B) not be contingent on the decision rendered by the reviewer.

“(7) RELATED PARTY DEFINED.—For purposes of this section, the term ‘related party’ means, with respect to a denial of a claim under a coverage relating to an enrollee, any of the following:

“(A) The issuer involved, or any fiduciary, officer, director, or employee of the issuer.

“(B) The enrollee (or authorized representative).

“(C) The health care professional that provides the items or services involved in the denial.

“(D) The institution at which the items or services (or treatment) involved in the denial are provided.

“(E) The manufacturer of any drug or other item that is included in the items or services involved in the denial.

“(F) Any other party determined under any regulations to have a substantial interest in the denial involved.

“(8) DEFINITIONS.—For purposes of this subsection:

“(A) ENROLLEE.—The term ‘enrollee’ means, with respect to health insurance coverage offered by a health insurance issuer, an individual enrolled with the issuer to receive such coverage.

“(B) HEALTH CARE PROFESSIONAL.—The term ‘health care professional’ means an individual who is licensed, accredited, or certified under State law to provide specified health care services and who is operating within the scope of such licensure, accreditation, or certification.

“SEC. 2799. Enforcement.

“(a) In general.—Subject to subsection (b), with respect to specific individual health insurance coverage the primary State for such coverage has sole jurisdiction to enforce the primary State’s covered laws in the primary State and any secondary State.

“(b) Secondary State’s authority.—Nothing in subsection (a) shall be construed to affect the authority of a secondary State to enforce its laws as set forth in the exception specified in section 2796(b)(1).

“(c) Court interpretation.—In reviewing action initiated by the applicable secondary State authority, the court of competent jurisdiction shall apply the covered laws of the primary State.

“(d) Notice of compliance failure.—In the case of individual health insurance coverage offered in a secondary State that fails to comply with the covered laws of the primary State, the applicable State authority of the secondary State may notify the applicable State authority of the primary State.”.

(b) Effective date.—The amendment made by subsection (a) shall apply to individual health insurance coverage offered, issued, or sold after the date that is one year after the date of the enactment of this Act.

(c) GAO Ongoing Study and Reports.—

(1) STUDY.—The Comptroller General of the United States shall conduct an ongoing study concerning the effect of the amendment made by subsection (a) on—

(A) the number of uninsured and underinsured;

(B) the availability and cost of health insurance policies for individuals with preexisting medical conditions;

(C) the availability and cost of health insurance policies generally;

(D) the elimination or reduction of different types of benefits under health insurance policies offered in different States; and

(E) cases of fraud or abuse relating to health insurance coverage offered under such amendment and the resolution of such cases.

(2) ANNUAL REPORTS.—The Comptroller General shall submit to Congress an annual report, after the end of each of the 5 years following the effective date of the amendment made by subsection (a), on the ongoing study conducted under paragraph (1).

SEC. 514. SECA tax deduction for health insurance costs.

(a) In general.—Subsection (l) of section 162 of the Internal Revenue Code of 1986 (relating to special rules for health insurance costs of self-employed individuals) is amended by striking paragraph (4) and by redesignating paragraph (5) as paragraph (4).

(b) Effective date.—The amendment made by this section shall apply to taxable years beginning after the date of the enactment of this title.

SEC. 601. E-verify program made permanent.

Section 401(b) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208; 8 U.S.C. 1324a note) is amended—

(1) in the subsection heading, by striking “; termination”; and

(2) by striking the second sentence.

SEC. 602. Verification under E-verify program made possible over telephone.

Section 404(d) of such Act is amended—

(1) in paragraph (3), by striking the “and” at the end;

(2) in paragraph (4)(C), by striking period at the end and inserting “; and”; and

(3) by adding at the end the following:

“(5) in such a manner that the confirmation or noncomfirmation may be provided by telephone.”.

SEC. 603. Grace period to correct paperwork.

Any small business concern that violates any provision of the Immigration and Nationality Act relating to the filing of an application, petition, or other paperwork, resulting in the assessment of a fine or penalty shall not be subject to that fine or other penalty if that small business concern remedies that violation during the 30-day period beginning on the date on which notice of the violation is received by the small business concern.

SEC. 701. Limits on patent legislation.

It is the sense of Congress that the Congress should make no law to lessen the protections available for new products or processes under the patent laws of the United States or to reduce the term of any existing patent.

SEC. 702. Expedited patent filing procedures for small business concerns.

There is established in the United States Patent and Trademark Office a Patent Ombudsman Program, which shall consist of the Patent Ombudsman Pilot Program announced by the United States Patent and Trademark Office on October 27, 2009, to be headed by an Ombudsman appointed by the Director of the United States Patent and Trademark Office. The duties of the Ombudsman shall include providing support and services relating to patent filings to small business concerns.

SEC. 801. Consumer incentives to purchase advanced technology vehicles.

(a) New Qualified Hybrid Motor Vehicles.—

(1) EXTENSION OF ALTERNATIVE VEHICLE CREDIT.—Subsection (j) of section 30B of the Internal Revenue Code of 1986, as amended by subsection (b), is amended by striking paragraph (3).

(2) INCREASE IN CREDIT AMOUNT.—Subparagraph (A) of section 30B(d)(2) of such Code is amended by striking “the sum of” and inserting “150 percent of the sum of”.

(b) Elimination on Number of New Qualified Hybrid and Advanced Lean Burn Technology Vehicles Eligible for Alternative Motor Vehicle Credit.—

(1) IN GENERAL.—Section 30B of the Internal Revenue Code of 1986 is amended by striking subsection (f) and by redesignating subsections (g) through (k) as subsections (f) through (j), respectively.

(2) CONFORMING AMENDMENTS.—

(A) Paragraphs (4) and (6) of section 30B(h) of the Internal Revenue Code of 1986 are each amended by striking “(determined without regard to subsection (g))” and inserting “determined without regard to subsection (f))”.

(B) Section 38(b)(25) of such Code is amended by striking “section 30B(g)(1)” and inserting “section 30B(f)(1)”.

(C) Section 55(c)(2) of such Code is amended by striking “section 30B(g)(2)” and inserting “section 30B(f)(2)”.

(D) Section 1016(a)(36) of such Code is amended by striking “section 30B(h)(4)” and inserting “section 30B(g)(4)”.

(E) Section 6501(m) of such Code is amended by striking “section 30B(h)(9)” and inserting “section 30B(g)(9)”.

(c) Flexible Fuel Vehicle Credit.—

(1) IN GENERAL.—Subpart B of part IV of subchapter A of chapter 1 of the Internal Revenue Code of 1986 (relating to foreign tax credit, etc.) is amended by adding at the end the following new section:

“SEC. 30E. Flexible fuel vehicle credit.

“(a) Allowance of Credit.—There shall be allowed as a credit against the tax imposed by this chapter for the taxable year an amount equal to the GEM flexible fuel vehicle credit.

“(b) GEM Flexible Fuel Vehicle Credit.—

“(1) IN GENERAL.—For the purposes of subsection (a), the GEM flexible fuel vehicle credit determined under this subsection for the taxable year is the credit amount determined under paragraph (2) with respect to a GEM flexible fuel vehicle placed in service by the taxpayer during the taxable year.

“(2) CREDIT AMOUNT.—In the case of a new qualified GEM flexible fuel vehicle which is a passenger automobile or light truck and which has a gross vehicle weight rating of not more than 8,500 pounds, the amount shall be $1,000.

“(c) Definitions.—For purposes of this section:

“(1) GEM FLEXIBLE FUEL VEHICLE.—The term ‘GEM flexible fuel vehicle’ means a motor vehicle warrantied by its manufacturer to operate on any combination of gasoline, E85, M85, biodiesel, and hydrogen and its blends.

“(2) E85.—The term ‘E85’ means a fuel blend containing 85 percent ethanol and 15 percent gasoline by volume.

“(3) M85.—The term ‘M85’ means a fuel blend containing 85 percent methanol and 15 percent gasoline by volume.”.

(2) CLERICAL AMENDMENT.—The table of sections for subpart B of part IV of subchapter A of chapter 1 of the Internal Revenue Code of 1986 (relating to foreign tax credit, etc.), is amended by adding at the end the following new item:


“Sec. 30E. Flexible fuel vehicle credit.”.

(d) Effective date.—The amendments made by this section shall apply to property placed in service after December 31, 2009, in taxable years ending after such date.

SEC. 811. Make permanent the tax credit for residential energy-efficient property.

Section 25D is amended by striking subsection (g).

SEC. 812. Make permanent the energy efficiency credit for existing homes.

Section 25C is amended by striking subsection (g).

SEC. 813. Make permanent the energy efficiency commercial buildings deduction.

Section 179D is amended by striking subsection (h).

SEC. 901. Guidance and advice about new rules.

(a) Determination regarding impact of new rules.—The head of each department or agency of the Federal Government may not issue a rule until that head has conducted a study to determine whether the rule will have an unduly burdensome effect on small business concerns. If that head determines that such an effect would occur, the head shall submit to the Administrator, not later than the date that is 3 months after the date that determination is made, guidance on how that effect may be mitigated.

(b) Advice.—The Administrator shall, on request, provide such other advice to small business concerns about those matters as the Administrator determines appropriate.

(c) Publication.—The Administrator shall publish and maintain all guidance received under subsection (a) and all advice provided under subsection (b) on the public Internet Web site of the Administrator, in a manner that ensures the continuing availability of that guidance to small business concerns.

SEC. 1001. Administration prohibited from capping executive compensation.

In carrying out any program under the Small Business Act or the Small Business Investment Act of 1958, the Administrator may not impose any limit on executive compensation by any small business concern.

SEC. 1002. Reduction of regulatory burden.

(a) GAO Report.—The Comptroller General of the United States shall conduct a study of each regulation of each Federal agency or department to determine the burden that such regulation imposes on small business concerns. The Comptroller General shall submit a report containing information on such burden to the Administrator not later than the date that is 9 months after the date of enactment of this Act.

(b) SBA Recommendations.—Not later than 6 months after receiving the report under subsection (a), the Administrator shall publish and maintain on the public Internet Web site of the Administrator recommendations on how to reduce the burden imposed by such regulation on small business concerns.

(c) Reduction of paperwork.—In carrying out any program under the Small Business Act or the Small Business Investment Act of 1958, the Administrator, acting through the Chief Counsel of the Office of Advocacy in the Small Business Administration, shall take any actions the Administrator determines appropriate to reduce the amount of paperwork (including any application, filing, or petition) that a small business concern may be required to complete by any Federal department or agency. Such steps shall include providing for the replacement of such paperwork with electronic or telephone filing or reporting.

SEC. 1003. Litigation burden on small business concerns to be limited to current levels.

It is the sense of the Congress that the Congress should not pass legislation altering substantive or procedural law that causes more small business concerns to be involved in litigation.

SEC. 1004. Expansion of volunteer representation and benchmark reports.

(a) Expansion of volunteer representation.—Section 8(b)(1)(B) of the Small Business Act (15 U.S.C. 637(b)(1)(B)) is amended—

(1) by inserting “(i)” after “(B)”; and

(2) by adding at the end the following:

“(ii) The Administrator shall ensure that SCORE, established under this subparagraph, carries out a plan to increase the number of mentors and, on an annual basis, reports to the Administrator on the implementation of this subparagraph.”.

(b) Benchmark reports.—Section 8(b)(1)(B) of the Small Business Act (15 U.S.C. 637(b)(1)(B)), as amended by this Act, is further amended by adding at the end the following:

“(iii) The Administrator shall ensure that SCORE, established under this subparagraph, establishes benchmarks for use in evaluating the performance of its activities and of its volunteers. The benchmarks shall include benchmarks related to the hours spent mentoring by volunteers and benchmarks relating to the performance of the persons assisted by SCORE. SCORE shall report, on an annual basis, to the Administrator the extent to which the benchmarks established under this clause are being attained.”.

SEC. 1005. Mentoring and networking.

Section 8(b)(1)(B) of the Small Business Act (15 U.S.C. 637(b)(1)(B)), as amended by this Act, is further amended by adding at the end the following:

“(iv) The Administrator shall ensure that SCORE, established under this subparagraph, establishes a mentoring program for small business concerns that provides one-on-one advice to small business concerns from qualified counselors. For purposes of this clause, qualified counselors are counselors with at least 10 years experience in the industry sector or area of responsibility of the small business concern seeking advice.

“(v) The Administrator shall carry out a networking program through SCORE, established under this subparagraph, that provides small business concerns with the opportunity to make business contacts in their industry or geographic region.”.

SEC. 1006. Name of program changed to SCORE.

(a) Name change.—The Small Business Act is amended as follows:

(1) In section 8(b)(1)(B) (15 U.S.C. 637(b)(1)(B)), by striking “Executives (SCORE)” and inserting “Executives (in this Act referred to as ‘SCORE’)”.

(2) In section 7(m)(3)(A)(i)(VIII) (15 U.S.C. 636(m)(3)(A)(i)(VIII)), by striking “the Service Corps of Retired Executives” and inserting “SCORE”.

(3) In section 20 (15 U.S.C. 631 note)—

(A) in subsection (d)(1)(E), by striking “the Service Corps of Retired Executives program” and inserting “SCORE”; and

(B) in subsection (e)(1)(E), by striking “the Service Corps of Retired Executives program” and inserting “SCORE”.

(4) In section 33(b)(2) (15 U.S.C. 657c(b)(2)), by striking “Service Corps of Retired Executives” and inserting “SCORE”.

(b) Elimination of ACE.—Section 8(b)(1)(B) of the Small Business Act (15 U.S.C. 637(b)(1)(B)), as amended, is further amended by striking “and an Active Corps of Executives (ACE)”.

SEC. 1007. Authorization of appropriations.

Section 20 of the Small Business Act (15 U.S.C. 631 note) is amended by inserting the following new subsection after subsection (e):

“(f) Authorization of appropriations for score.—There is authorized to be appropriated $11,000,000 for SCORE under section 8(b)(1) for each of the fiscal years 2010 and 2011.”.

SEC. 1011. Small business goals.

Section 15(g)(1) of the Small Business Act (15 U.S.C. 644(g)) is amended—

(1) in paragraph (1), by striking “23 percent” and inserting “30 percent”; and

(2) by adding at the end the following:

“(3)(A) Notwithstanding paragraph (1), the President may permit the National Aeronautics and Space Administration and the Department of Energy to treat the Governmentwide goal for participation by small business concerns as though such goal were 23 percent.

“(B) Not later than 60 days after providing permission under subparagraph (A), the President shall provide notice to the Office of Advocacy in the Small Business.”.

SEC. 1012. Agency goal negotiation.

(a) Negotiation.—Section 15(g)(1) of the Small Business Act (15 U.S.C. 644(g)(1)) is amended by striking “The President shall annually establish Governmentwide goals for procurement contracts” and inserting “The President shall before the close of each fiscal year establish new Governmentwide procurement goals for the following fiscal year for procurement contracts.”.

(b) Minimum level.—Section 15(g)(1) of the Small Business Act (15 U.S.C. 644(g)(1)), as amended by this Act, is further amended by striking “Notwithstanding the Governmentwide goal, each agency shall have an annual goal” and inserting “Each agency shall have an annual goal, not lower than the Governmentwide goal,”.

SEC. 1013. Procedures and methods for goal achievement.

(a) Goal responsibility.—Section 15(g)(2) of the Small Business Act (15 U.S.C. 644(g)(2)) is amended by adding the following after the first sentence: “The goals established by the head of each agency shall be apportioned within the agency to a contracting office or offices (as that term is defined in section 2.101 of title 48, Code of Federal Regulations on January 1, 2009) that reports to a career appointee in the Senior Executive Service.”.

(b) Senior Executive Service.—

(1) PURPOSES.—Section 3131 of title 5, United States Code, is amended—

(A) in paragraph (13) by striking the “and” at the end;

(B) in paragraph (14) by striking the period at the end and inserting “; and”; and

(C) by adding at the end the following:

“(15) ensure that the Government achieves the small business procurement goals set forth in section 15 of the Small Business Act (15 U.S.C. 644).”.

(2) TRAINING.—Section 3396(a) of title 5, United States Code, is amended by adding at the end the following: “The training provided to senior executives shall include Federal procurement policy, including the procurement provisions of the Small Business Act.”.

(3) LIMITATION ON SABBATICALS.—Section 3396(c)(2) of title 5, United States Code is amended—

(A) in subparagraph (B)(iii) by striking the “and” at the end;

(B) in subparagraph (C) by striking the period at the end and inserting “; or”; and

(C) by inserting after subparagraph (C) the following:

“(D) who oversees a contracting office that did not meet its small business procurement goals established annually in accordance with the procedures of section 15(g)(2) of the Small Business Act (15 U.S.C. 644(g)(2)).”.

(4) LIMITATION ON INCENTIVE AWARDS.—An employee in the Senior Executive Service shall not be eligible for any incentive award specified in subchapter I, chapter 45 of title 5, United States Code, if the contracting office which reports to that member of the Senior Executive Service fails to meet the procurement goals established annually in accordance with the procedures of section 15(g)(2) of the Small Business Act (15 U.S.C. 644(g)(2)). Any member of the Senior Executive Service, whether career or noncareer, to whom that member of the Senior Executive Service reports also shall not be eligible for any incentive award specified in subchapter I, chapter 45 of title 5, United States Code.

SEC. 1014. Reporting requirements.

Section 15(h) of the Small Business Act (15 U.S.C. 644(h)) is amended by adding at the end the following:

“(4) By November 1 of each year, the head of each Federal agency shall submit to Congress a report specifying the percentage of contracts awarded by that agency for the immediate preceding fiscal year that were awarded to small business concerns. If the percentage is less than the goal established by the head of the agency pursuant to this section, the head of the agency shall, in the report, explain why the agency did not reach the goal and what will be done to ensure that the goal for the following fiscal year will be achieved.”.

SEC. 1021. Definitions of bundling of contract requirements.

Section 3(o) of the Small Business Act (15 U.S.C. 632(o)) is amended to read as follows:

“(o) Definitions of Bundling of Contract Requirements and Related Terms.—For purposes of this Act:

“(1) BUNDLED CONTRACT.—

“(A) IN GENERAL.—The term ‘bundled contract’ means a contract or order that is entered into to meet procurement requirements that are consolidated in a bundling of contract requirements, without regard to its designation by the procuring agency or whether a study of the effects of the solicitation on civilian or military personnel has been made.

“(B) EXCEPTIONS.—The term does not include—

“(i) a contract or order with an aggregate dollar value below the dollar threshold specified in paragraph (4); or

“(ii) a contract or order that is entered into to meet procurement requirements, all of which are exempted requirements under paragraph (5).

“(2) BUNDLING OF CONTRACT REQUIREMENTS.—

“(A) IN GENERAL.—The term ‘bundling of contract requirements’ means the use of any bundling methodology to satisfy 2 or more procurement requirements for new or existing goods or services, including any construction services, that is likely to be unsuitable for award to a small business concern due to—

“(i) the diversity, size, or specialized nature of the elements of the performance specified;

“(ii) the aggregate dollar value of the anticipated award;

“(iii) the geographical dispersion of the contract or order performance; or

“(iv) any combination of the factors described in clauses (i), (ii), or (iii).

“(B) EXCEPTIONS.—The term does not include—

“(i) the use of a bundling methodology for an anticipated award with an aggregate dollar value below the threshold specified in paragraph (4); or

“(ii) the use of a bundling methodology to meet procurement requirements, all of which are exempted under paragraph (5).

“(3) BUNDLING METHODOLOGY.—The term ‘bundling methodology’ means—

“(A) a solicitation to obtain offers for a single contract or order, or a multiple award contract or order;

“(B) a solicitation of offers for the issuance of a task or a delivery order under an existing single or multiple award contract or order; or

“(C) the creation of any new procurement requirements that permit a consolidation of contract or order requirements.

“(4) DOLLAR THRESHOLD.—The term ‘dollar threshold’ means—

“(A) $65,000,000 if solely for construction services; and

“(B) $1,500,000 in all other cases.

“(5) EXEMPTED REQUIREMENTS.—The term ‘exempted requirement’ means one or more of the following:

“(A) A procurement requirement solely for items that are not commercial items (as the term ‘commercial item’ is defined in section 4(12) of the Office of Federal Procurement Policy Act (41 U.S.C. 403(12)) but this subparagraph shall not apply to any procurement requirement for a contract for goods or services provided by a business classified in sector 23 of the North American Industrial Classification System.

“(B) A procurement requirement with respect to which a determination that it is unsuitable for award to a small business concern has previously been made by the agency. However, the Administrator shall have authority to review and reverse such a determination for purposes of this paragraph and, if the Administrator does reverse that determination, the term ‘exempted requirement’ shall not apply to that procurement requirement.

“(6) PROCUREMENT REQUIREMENT.—The term ‘procurement requirement’ means a determination by an agency that a specified good or service is needed to satisfy the mission of the agency.”.

SEC. 1022. Justification.

(a) Statement of bundled contract requirements.—Section 15(a) of the Small Business Act (15 U.S.C. 644(a)) is amended—

(1) by striking “is in a quantity or estimated dollar value the magnitude of which renders small business prime contract participation unlikely” and inserting “would now be combined with other requirements for goods and services”;

(2) by striking “(2) why delivery schedules” and inserting “(2) the names, addresses and size of the incumbent contract holders, if applicable; (3) a description of the industries that might be interested in bidding on the contract requirements; (4) the number of small businesses listed in the industry categories that could be excluded from future bidding if the contract is combined or packaged, including any small business bidders that had bid on previous procurement requirements that are included in the bundling of contract requirements; (5) why delivery schedules”;

(3) by striking “(3) why the proposed acquisition” and inserting “(6) why the proposed acquisition”;

(4) by striking “(4) why construction” and inserting “(7) why construction”;

(5) by striking “(5) why the agency” and inserting “(8) why the agency”;

(6) by striking “justified” and inserting “justified. The statement also shall set forth the proposed procurement strategy required by subsection (e) and, if applicable, the specifications required by subsection (e)(3). Concurrently, the statement shall be made available to the public, including through dissemination in the Federal contracting opportunities database.”; and

(7) by inserting after “prime contracting opportunities.” the following: “If no notification of the procurement and accompanying statement is received, but the Administrator determines that there is cause to believe the contract combines requirements or a contract (single or multiple award) or task or delivery order for construction services or includes unjustified bundling, then the Administrator can demand that such a statement of work goods or services be completed by the procurement activity and sent to the Procurement Center Representative and the solicitation process postponed for at least 10 days but no more than 30 days to allow the Administrator to review the statement and make recommendations as described in this section before procurement is continued.”.

(b) Substantial measurable benefits.—Section 15(e)(2)(C) of the Small Business Act (15 U.S.C. 644(e)) is amended by adding at the end the following: “Cost savings shall not include any reduction in the use of military interdepartmental purchase requests or any similar transfer funds among Federal agencies for the use of a contract issued by another Federal agency.”.

SEC. 1023. Appeals.

Section 15(a) of the Small Business Act (15 U.S.C. 644(a)), as amended by this Act, is further amended—

(1) by striking “If a proposed procurement includes in its statement” and inserting “If a proposed procurement would adversely affect one or more small business concerns, including, but not limited to, the potential loss of an existing contract, or if a proposed procurement includes in its statement”; and

(2) by inserting before “Whenever the Administrator and the contracting procurement agency fail to agree,” the following: “If a small business concern would be adversely affected, directly or indirectly, by the procurement as proposed, and that small business concern or a trade association of which that small business concern is a member so requests, the Administrator may take action to further the interests of the small business.”.

SEC. 1024. Third-party review.

Section 8(d) of the Contract Disputes Act of 1978 (41 U.S.C. 607(d)) is amended—

(1) by striking “(d) The Armed Services Board” and inserting “(d)(1) The Armed Services Board”; and

(2) by inserting at the end the following:

“(2) Contract Bundling.—

“(A) IN GENERAL.—Whenever the head of a contracting agency makes a decision in accordance with section 15(a) of the Small Business Act concerning the Administrator of the Small Business Administration’s challenge to a bundling of contract requirements, the Administrator, within ten days after such decision may file a challenge with the appropriate agency board of contract appeals.

“(B) PROCEDURE.—The board shall provide the Administrator and the head of the contracting agency the opportunity to provide their views on the disputed contract. No oral testimony or oral argument shall be permitted. The board shall render its decision within thirty days after the appeal has been filed. The decision of the board shall be final.”.

SEC. 1031. Good faith compliance with subcontracting plans.

Section 8(d)(10) of the Small Business Act (15 U.S.C. 637(d)(10)) is amended by—

(1) by striking “and” at the end of subparagraph (B);

(2) by striking the period at the end of subparagraph (C) and inserting “; and”; and

(3) by adding at the end the following:

    “(D) not later than 180 days after enactment of the Small Business Bill of Rights, the Administrator shall, after the opportunity for notice and comment, promulgate regulations governing the Administrator’s review of subcontracting plans including the standards for determining good faith compliance with the subcontracting plans.”.

SEC. 1032. Limitations on subcontracting.

(a) Regulations for contract administration.—Section 15(o) of the Small Business Act (15 U.S.C. 644(o)) is amended by adding at the end the following:

“(4) Not later than 180 days after enactment of the Small Business Bill of Rights, the Administrator shall, after the opportunity for notice and comment, promulgate regulations that specify the responsibilities that each agency and the Administration personnel will have in enforcing the restrictions set forth in paragraph (1). Such regulations also shall specify reporting and recordkeeping requirements for contracts covered by paragraph (1).”.

(b) Contractor penalties.—Section 16 of the Small Business Act (15 U.S.C. 645) is amended by adding at the end the following:

“(g) A small business that violates the requirements of section 15(o)(1) of the Small Business Act shall be subject to the penalties set forth in subsection (d).”.

SEC. 1033. Criminal violations.

Section 1001(a) of title 18, United States Code, is amended—

(1) in paragraph (2) by striking the “or” at the end;

(2) in paragraph (3) by adding “or” at the end;

(3) inserting after paragraph (3) the following:

“(4) makes in writing or electronically a false statement concerning status as a small business concern or compliance with the requirements of the Small Business Act in an effort to obtain, retain, or complete a Federal Government contract;”; and

(4) by adding at the end the following: “For violation of paragraph (4) of this subsection, notwithstanding section 3571(e), the fine under this title shall be the total value of the contract or $1,000,000, whichever is greater.”.

SEC. 1101. Transfer of unobligated stimulus funds.

(a) Rescission.—Effective on the date of the enactment of this Act, any unobligated balances available on such date of funds made available by division A of the American Recovery and Reinvestment Act of 2009 (Public Law 111–5), other than under the heading “Federal Highway Administration-Highway Infrastructure Investment” in title XII of such division, are rescinded and such provisions are repealed.

(b) Repeal.—The provisions of division B of the American Recovery and Reinvestment Act of 2009 (Public Law 111–5), other than titles I and II of such division are repealed.

(c) Transfer of Funds.—The total amount rescinded by this section shall be deposited in the Federal Treasury.

SEC. 1201. Repeal of the Troubled Asset Relief Program.

(a) In general.—Notwithstanding any other provision of law, the authorities provided under section 101(a) of the Emergency Economic Stabilization Act of 2008 (excluding section 101(a)(3)) and under section 102 of such Act shall terminate on the date of enactment of this Act.

(b) Returned TARP money To be used for deficit reduction.—Notwithstanding any other provision of law, all assistance received under title I of the Emergency Economic Stabilization Act of 2008 that is repaid on or after the date of enactment of this Act, along with any dividends, profits, or other funds paid to the Government based on such assistance on or after the date of enactment of this Act, shall be deposited in the Treasury to reduce the deficit.

(c) Lowering of national debt limit To correspond to TARP repayments.—Section 3101 of title 31, United States Code, is amended—

(1) in subsection (b), by inserting after the dollar limitation contained in such subsection the following: “, as such amount is reduced by the amount described under subsection (d)”; and

(2) by adding at the end the following new subsection:

“(d) The amount described under this subsection is the amount that equals the amount of all assistance received under title I of the Emergency Economic Stabilization Act of 2008 that is repaid on or after the date of enactment of the Small Business Bill of Rights, along with any dividends, profits, or other funds paid to the Government based on such assistance on or after the date of enactment of the Small Business Bill of Rights.”.

SEC. 1301. Definitions.

In this Act:

(1) The term “Administrator” means the Administrator of Small Business Administration.

(2) The term “small business concern” has the meaning given such term under section 3 of the Small Business Act.