[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 2750 Introduced in Senate (IS)]


109th CONGRESS
  2d Session
                                S. 2750

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


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 4, 2006

  Mr. DeMint introduced the following bill; which was read twice and 
                  referred to the Committee on Finance

_______________________________________________________________________

                                 A BILL


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

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Access to Emergency Medical Services 
Act of 2006''.

SEC. 2. FINDINGS.

    The Congress finds as follows:
            (1) Emergency medical care is an essential element of the 
        health care safety net.
            (2) Emergency departments are critical in addressing public 
        health issues such as emerging and reemerging infections 
        diseases, bioterrorism, and mass casualty incidences.
            (3) The Emergency Medical Treatment and Labor Act 
        (``EMTALA'') requires that all patients who come to an 
        emergency department be evaluated and their emergency medical 
        conditions be stabilized, regardless of the patient's ability 
        to pay.
            (4) The emergency department is a critical site of service 
        for indigent patients who otherwise do not have access to 
        health care services.
            (5) Estimates indicate that 45,000,000 Americans lack 
        health coverage of any kind for an entire year and that tens of 
        millions more Americans go without health coverage for shorter 
        periods of time.
            (6) Nationally, more than 35 percent of emergency 
        department patients are uninsured or are Medicaid or SCHIP 
        enrollees.
            (7) As a key part of the health care safety net, emergency 
        departments in many of the Nation's communities are under 
        strain.
            (8) Strain on emergency departments is due to multiple 
        factors, including the shortage of nurses, a decrease in the 
        total number of community hospitals, and high levels of bad 
        debt incurred as a result of providing care to indigent 
        patients.
            (9) Current trends indicate that maintaining access to 
        high-quality emergency care across the nation is at risk.
            (10) Sufficient resources must be allocated to emergency 
        care providers to ensure that every American has access to 
        high-quality emergency care.
            (11) The Medicare program provides disproportionate share 
        payments for inpatient services to hospitals that serve a 
        disproportionate number of low income and indigent patients.
            (12) Providing additional payments for care provided in an 
        emergency department is critical in ensuring beneficiaries have 
        access to high quality emergency services and specialist care 
        in an emergency department.

                   TITLE I--MEDICAL LIABILITY REFORMS

SEC. 101. CONSTITUTIONAL AUTHORITY.

    The constitutional authority upon which this title rests is the 
power of the Congress to provide for the general welfare, to regulate 
commerce, and to make all laws which shall be necessary and proper for 
carrying into execution Federal powers, as enumerated in section 8 of 
article I of the Constitution of the United States.

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

    Section 224(g) of the Public Health Service Act (42 U.S.C. 233(g)) 
is amended--
            (1) in paragraph (4), by striking ``An entity'' and 
        inserting in lieu thereof ``Subject to paragraph (6), an 
        entity''; and
            (2) by adding at the end the following:
    ``(6)(A) For purposes of this section--
            ``(i) an entity described in subparagraph (B) shall be 
        considered to be an entity described in paragraph (4); and
            ``(ii) the provisions of this section shall apply to an 
        entity described in subparagraph (B) in the same manner as such 
        provisions apply to an entity described in paragraph (4), 
        except that--
                    ``(I) notwithstanding paragraph (1)(A), the 
                Secretary may deem a physician who is an on-call 
                physician (as defined in subparagraph (D)) of an entity 
                described in subparagraph (B)(i) to be an employee of 
                the Public Health Service for purposes of this section 
                if the physician provides services described in 
                subclause (II) for the entity pursuant to an 
                arrangement other than under a contract with the 
                entity;
                    ``(II) notwithstanding paragraph (1)(B), the 
                deeming of any entity described in subparagraph (B), or 
                of an officer, governing board member, employee, 
                contractor, or on-call physician of such an entity, to 
                be an employee of the Public Health Service for 
                purposes of this section shall apply only with respect 
                to items and services that are furnished to an 
                uninsured individual (as defined in subparagraph (C)) 
                pursuant to section 1867 of the Social Security Act and 
                to post-stabilization services (as defined in 
                subparagraph (E)) furnished to such an individual;
                    ``(III) nothing in paragraph (1)(D) shall be 
                construed as preventing a physician or physician group 
                described in subparagraph (B)(ii) from making the 
                application referred to in such paragraph or as 
                conditioning the deeming of a physician or physician 
                group that makes such an application upon receipt by 
                the Secretary of an application from the hospital or 
                emergency department for which such physician or 
                physician group provides services described in 
                subclause (II);
                    ``(IV) notwithstanding paragraph (3), this 
                paragraph shall apply only with respect to causes of 
                action arising from acts or omissions that occur on or 
                after January 1, 2005;
                    ``(V) paragraph (5) shall not apply to a physician 
                or physician group described in subparagraph (B)(ii);
                    ``(VI) the Attorney General, in consultation with 
                the Secretary, shall make separate estimates under 
                subsection (k)(1) with respect to entities described in 
                subparagraph (B) and entities described in paragraph 
                (4) (other than those described in subparagraph (B)), 
                and the Secretary shall establish separate funds under 
                subsection (k)(2) with respect to such groups of 
                entities, and any appropriations under this subsection 
                for entities described in subparagraph (B) shall be 
                separate from the amounts authorized by subsection 
                (k)(2);
                    ``(VII) notwithstanding subsection (k)(2), the 
                amount of the fund established by the Secretary under 
                such subsection with respect to entities described in 
                subparagraph (B) may exceed a total of $10,000,000 for 
                a fiscal year; and
                    ``(VIII) subsection (m) shall not apply to entities 
                described in subparagraph (B).
    ``(B) An entity described in this subparagraph is--
            ``(i) a hospital or an emergency department to which 
        section 1867 of the Social Security Act applies; and
            ``(ii) a physician or physician group that provides 
        services described in subparagraph (A)(ii)(II) for such 
        hospital or department.
    ``(C) For purposes of this paragraph, the term `uninsured 
individual' means an individual who, at the time treatment is provided 
by an entity described in subparagraph (B) for purposes of complying 
with section 1867 of the Social Security Act--
            ``(i) does not have coverage under--
                    ``(I) a group health plan (as defined in section 
                2791(a)(1));
                    ``(II) part A, B, or (C) of title XVIII of the 
                Social Security Act; or
                    ``(III) a State plan under title XIX of such Act; 
                and
            ``(ii) does not have health insurance coverage (as defined 
        in section 2791(b)(1)) from any other source.
    ``(D) For purposes of this paragraph, the term `on-call physician' 
means a physician who is on the list of physicians that is maintained 
by an entity described in subparagraph (B)(i) pursuant to section 
1866(a)(1)(I) of the Social Security Act.
    ``(E) For purposes of this paragraph, the term `post-stabilization 
services' means, with respect to an individual who has been treated by 
an entity described in subparagraph (B) for purposes of complying with 
section 1867 of the Social Security Act, services that are--
            ``(i) related to the condition that was so treated; and
            ``(ii) provided after the individual is stabilized in order 
        to maintain the stabilized condition or to improve or resolve 
        the individual's condition.
    ``(F)(i) Nothing in this paragraph (or in any other provision of 
this section as such provision applies to entities described in 
subparagraph (B) by operation of subparagraph (A)) shall be construed 
as authorizing or requiring the Secretary to make payments to such 
entities, the budget authority for which is not provided in advance by 
appropriation Acts.
    ``(ii) The Secretary shall limit the total amount of payments under 
this paragraph for a fiscal year to the total amount appropriated in 
advance by appropriation Acts for such purpose for such fiscal year. If 
the total amount of payments that would otherwise be made under this 
paragraph for a fiscal year exceeds such total amount appropriated, the 
Secretary shall take such steps as may be necessary to ensure that the 
total amount of payments under this paragraph for such fiscal year does 
not exceed such total amount appropriated.
    ``(F) The Secretary may deem a physician who is an on-call 
physician of an entity described in subparagraph (B) as an employee of 
the Public Health Service for purposes of this section, if the 
physician was providing items or services described in subparagraph (D) 
for the entity pursuant to an arrangement other than a contract with 
the entity.''.

                 TITLE II--ADDITIONAL MEDICARE PAYMENT

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

    Section 1833 of the Social Security Act (42 U.S.C. 1395l) is 
amended by adding at the end the following new subsection:
    ``(v) Additional Payments for Physicians' Services Furnished in 
Emergency Departments.--In the case of physicians' services furnished 
on or after January 1, 2006, in the emergency department of a hospital 
or critical access hospital to an individual covered under the 
insurance program established by this part, in addition to the amount 
of payment that will otherwise be made for such services under this 
part, there shall also be paid to the physician or other person (or to 
an employer or other entity in the cases described in clause (A) of 
section 1842(b)(6)) from the Federal Supplementary Insurance Trust Fund 
an amount equal to 10 percent of the payment amount for the service 
under this part.''.

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

    (a) In General.--
            (1) Incentive payments.--Section 1833(t) of the Social 
        Security Act (42 U.S.C. 1395l(t)) is amended by adding at the 
        end the following:
            ``(15) Incentive payments for prompt admissions of certain 
        emergency department patients.--
                    ``(A) In general.--
                            ``(i) Additional payment.--Subject to 
                        subparagraph (C)(i), in the case of emergency 
                        department visits furnished in a calendar 
                        quarter beginning on or after January 1, 2007, 
                        by a hospital that has transmitted a 
                        certification pursuant to clause (ii) for such 
                        quarter there shall be paid to the hospital for 
                        such visits an amount equal to--
                                    ``(I) 10 percent of the amount 
                                otherwise payable under this subsection 
                                for such visits (which shall be in 
                                addition to such payment amount); or
                                    ``(II) in the case of visits for 
                                which payment may not be made under 
                                this subsection by reason of the 
                                bundling requirements of section 
                                1886(a)(4), 10 percent of the amount 
                                that would have been paid for such 
                                visits but for the admission of the 
                                patient involved for inpatient hospital 
                                services.
                            ``(ii) Certification process.--In order to 
                        qualify for additional payments under this 
                        paragraph for a quarter, a hospital shall 
                        transmit to the Secretary (at such time before 
                        the beginning of such quarter as the Secretary 
                        may require) a certification that, for second 
                        preceding quarter, the hospital met the 
                        standards established under subparagraph (B).
                            ``(iii) Emergency department visits.--For 
                        purposes of this paragraph, the term `emergency 
                        department visits' means ambulatory patient 
                        classification groups 0600, 0601, 0602, 0610, 
                        0611, 0612, and 0620 (and any successor groups 
                        as determined by the Secretary).
                    ``(B) Standards for prompt admissions.--
                            ``(i) Timing.--Not later than June 30, 
                        2006, the Secretary shall promulgate final 
                        regulations (after notice and an opportunity 
                        for public comment) establishing standards for 
                        prompt admission by a hospital of those 
                        individuals presenting to the emergency 
                        department of the hospital who are determined 
                        at the time an emergency department visit to 
                        require inpatient hospital services at the 
                        hospital (hereafter in this paragraph referred 
                        to as `emergency department patients requiring 
                        admission' or `such patients').
                            ``(ii) Requirements.--The standards under 
                        clause (i) shall--
                                    ``(I) be designed to substantially 
                                reduce or eliminate overcrowding and 
                                boarding of patients in such 
                                departments and in other outpatient 
                                setting adjacent to such departments;
                                    ``(II) be expressed as an average 
                                of the time elapsed between the 
                                decision to admit such patients and the 
                                arrival of such patients at their 
                                definitive destination in the hospital 
                                (and not in an area outside the 
                                emergency department for holding such 
                                patients before arrival at such 
                                definitive destination);
                                    ``(III) be applied on a rolling 
                                quarterly basis (consistent with the 
                                certification process under 
                                subparagraph (A)(ii));
                                    ``(IV) provide that a hospital may 
                                not, for purposes of compliance with 
                                such standards, treat as an admission a 
                                patient who is deemed to be admitted 
                                under this title by reason of being 
                                present in the hospital for two 
                                consecutive midnight patient censuses;
                                    ``(V) provide for exceptions for 
                                extraordinary circumstances involving 
                                mass casualties;
                                    ``(VI) apply to calendar quarters 
                                beginning on or after July 1, 2006, for 
                                purposes of determining eligibility for 
                                additional payments under this 
                                paragraph and to calendar quarters 
                                beginning on or after January 1, 2007, 
                                for purposes of imposing civil money 
                                penalties under paragraphs (8) and (9) 
                                of section 1128A(a); and
                                    ``(VII) be revised from time to 
                                time if the Secretary determines that 
                                further reductions in such overcrowding 
                                and boarding are necessary.
                    ``(C) Treatment of additional payments.--The 
                additional payments under this paragraph--
                            ``(i) shall be treated as conditional 
                        payments that the Secretary may recover through 
                        recoupment, offset, or other means (in 
                        accordance with procedures and requirements 
                        applicable to overpayments under this title) if 
                        a hospital is found, upon audit under 
                        subparagraph (D)(i), not to meet such standards 
                        for a quarter to which a certification relates;
                            ``(ii) shall not be taken into account in 
                        determining--
                                    ``(I) the copayment for which an 
                                individual enrolled under this part is 
                                liable under this subsection; or
                                    ``(II) any adjustment under 
                                subparagraph (A) or (B) of paragraph 
                                (9); and
                            ``(iii) shall not be treated as an 
                        adjustment under paragraph (2)(E).
                    ``(D) Audits of certifications; investigation of 
                complaints.--The Secretary shall establish a process 
                under which--
                            ``(i) the Secretary, an agency with which 
                        the Secretary has an agreement under section 
                        1864, or a national accrediting body for the 
                        accreditation of hospitals that is recognized 
                        under section 1865 conducts periodic audits of 
                        certifications made by a hospital to determine 
                        whether such hospital met the standards 
                        established under subparagraph (B) for the 
                        quarter to which a certification relates; and
                            ``(ii) the Secretary or an agency with 
                        which the Secretary has an agreement under 
                        section 1864--
                                    ``(I) investigates complaints that 
                                a hospital has engaged in a pattern or 
                                practice of failing to comply with such 
                                standards; and
                                    ``(II) investigates any hospital 
                                that has failed to certify under 
                                subparagraph (A)(ii) its compliance 
                                with such standards for three 
                                consecutive calendar quarters to 
                                determine whether such hospital has 
                                engaged on a pattern or practice of 
                                failing to comply with such standards 
                                (and for purposes of this subclause, 
                                any certification that is determined by 
                                an audit under clause (i) to be false 
                                shall be treated as a failure to 
                                certify for the quarter involved).
                        Notwithstanding any other provision of law, the 
                        identity of any person filing a complaint under 
                        subclause (I) shall not be disclosed unless the 
                        Secretary determines that such complaint was 
                        filed in bad faith.''.
            (2) GAO report.--Not later than 12 months after the 
        Secretary publishes a final rule establishing or revising 
        standards under subparagraph (B) of section 1833(t)(15) of the 
        Social Security Act (42 U.S.C. 1395l(t)(15)), as added by 
        paragraph (1), the Comptroller General shall submit to the 
        Committee on Finance of the Senate and the Committees on Ways 
        and Means and Energy and Commerce of the House of 
        Representatives a report that--
                    (A) evaluates whether such standards will achieve 
                the objectives specified in such subparagraph; and
                    (B) makes recommendations for any changes to such 
                standards that are necessary to achieve such 
                objectives.
    (b) Civil Money Penalties for Pattern or Practice of Violating 
Standards.--Section 1128A(a) of the Social Security Act (42 U.S.C. 
1320a-7a(a)) is amended--
            (1) by striking ``or'' at the end of paragraph (6);
            (2) by inserting after paragraph (7) the following:
            ``(8) makes a false certification under section 
        1833(t)(15)(A)(ii); or
            ``(9) engages in a pattern or practice of failing to meet 
        the standards established under 1833(t)(15)(B);''; and
            (3) in the matter after and below paragraph (9) (as added 
        by paragraph (2) of this subsection), by inserting after 
        ``prohibited relationship occurs;'' the following: ``in cases 
        under paragraph (8), an amount not to exceed three times the 
        amount of additional payments under section 1833(t)(15) that 
        are attributable to the false certification; in cases under 
        paragraph (9), an amount not to exceed $250,000 for each 
        quarter in which such pattern or practice is found to exist;''.
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