[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 973 Introduced in Senate (IS)]

111th CONGRESS
  1st Session
                                 S. 973

  To amend title XVIII of the Social Security Act to provide for the 
distribution of additional residency positions, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 5, 2009

    Mr. Nelson of Florida (for himself, Mr. Reid, and Mr. Schumer) 
introduced the following bill; which was read twice and referred to the 
                          Committee on Finance

_______________________________________________________________________

                                 A BILL


 
  To amend title XVIII of the Social Security Act to provide for the 
distribution of additional residency positions, 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.

    This Act may be cited as the ``Resident Physician Shortage 
Reduction Act of 2009''.

SEC. 2. DISTRIBUTION OF ADDITIONAL RESIDENCY POSITIONS.

    (a) In General.--Section 1886(h) of the Social Security Act (42 
U.S.C. 1395ww(h)) is amended--
            (1) in paragraph (4)(F)(i), by striking ``paragraph (7)'' 
        and inserting ``paragraphs (7) and (8)'';
            (2) in paragraph (4)(H)(i), by striking ``paragraph (7)'' 
        and inserting ``paragraphs (7) and (8)''; and
            (3) by adding at the end the following new paragraph:
            ``(8) Distribution of additional residency positions.--
                    ``(A) Additional residency positions.--
                            ``(i) Reduction in limit based on unused 
                        positions.--
                                    ``(I) In general.--The Secretary 
                                shall reduce the otherwise applicable 
                                resident limit for a hospital that the 
                                Secretary determines had residency 
                                positions that were unused for all 5 of 
                                the most recent cost reporting periods 
                                ending prior to the date of enactment 
                                of this paragraph by an amount that is 
                                equal to the number of such unused 
                                residency positions.
                                    ``(II) Exception for rural 
                                hospitals and certain other 
                                hospitals.--This subparagraph shall not 
                                apply to a hospital--
                                            ``(aa) located in a rural 
                                        area (as defined in subsection 
                                        (d)(2)(D)(ii));
                                            ``(bb) that has 
                                        participated in a voluntary 
                                        reduction plan under paragraph 
                                        (6); or
                                            ``(cc) that has 
                                        participated in a demonstration 
                                        project approved as of October 
                                        31, 2003, under the authority 
                                        of section 402 of Public Law 
                                        90-248.
                            ``(ii) Number available for distribution.--
                        The number of additional residency positions 
                        available for distribution under subparagraph 
                        (B) shall be an amount that the Secretary 
                        determines would result in a 15 percent 
                        increase in the aggregate number of full-time 
                        equivalent residents in approved medical 
                        training programs (as determined based on the 
                        most recent cost reports available at the time 
                        of distribution). One-third of such number 
                        shall only be available for distribution to 
                        hospitals described in subclause (I) of 
                        subparagraph (B)(ii) under such subparagraph.
                    ``(B) Distribution.--
                            ``(i) In general.--The Secretary shall 
                        increase the otherwise applicable resident 
                        limit for each qualifying hospital that submits 
                        an application under this subparagraph by such 
                        number as the Secretary may approve for 
                        portions of cost reporting periods occurring on 
                        or after the date of enactment of this 
                        paragraph. The aggregate number of increases in 
                        the otherwise applicable resident limit under 
                        this subparagraph shall be equal to the number 
                        of additional residency positions available for 
                        distribution under subparagraph (A)(ii).
                            ``(ii) Distribution to hospitals already 
                        operating over resident limit.--
                                    ``(I) In general.--Subject to 
                                subclause (II), in the case of a 
                                hospital in which the reference 
                                resident level of the hospital (as 
                                specified in clause (iii)) is greater 
                                than the otherwise applicable resident 
                                limit, the increase in the otherwise 
                                applicable resident limit under this 
                                subparagraph shall be an amount equal 
                                to the product of the total number of 
                                additional residency positions 
                                available for distribution under 
                                subparagraph (A)(ii) and the quotient 
                                of--
                                            ``(aa) the number of 
                                        resident positions by which the 
                                        reference resident level of the 
                                        hospital exceeds the otherwise 
                                        applicable resident limit for 
                                        the hospital; and
                                            ``(bb) the number of 
                                        resident positions by which the 
                                        reference resident level of all 
                                        such hospitals with respect to 
                                        which an application is 
                                        approved under this 
                                        subparagraph exceeds the 
                                        otherwise applicable resident 
                                        limit for such hospitals.
                                    ``(II) Requirements.--A hospital 
                                described in subclause (I)--
                                            ``(aa) is not eligible for 
                                        an increase in the otherwise 
                                        applicable resident limit under 
                                        this subparagraph unless the 
                                        amount by which the reference 
                                        resident level of the hospital 
                                        exceeds the otherwise 
                                        applicable resident limit is 
                                        not less than 10 and the 
                                        hospital trains at least 25 
                                        percent of the full-time 
                                        equivalent residents of the 
                                        hospital in primary care and 
                                        general surgery (as of the date 
                                        of enactment of this 
                                        paragraph); and
                                            ``(bb) shall continue to 
                                        train at least 25 percent of 
                                        the full-time equivalent 
                                        residents of the hospital in 
                                        primary care and general 
                                        surgery for the 10-year period 
                                        beginning on such date.
                                In the case where the Secretary 
                                determines that a hospital no longer 
                                meets the requirement of item (bb), the 
                                Secretary may reduce the otherwise 
                                applicable resident limit of the 
                                hospital by the amount by which such 
                                limit was increased under this clause.
                                    ``(III) Clarification regarding 
                                eligibility for other additional 
                                residency positions.--Nothing in this 
                                clause shall be construed as preventing 
                                a hospital described in subclause (I) 
                                from applying for additional residency 
                                positions under this paragraph that are 
                                not reserved for distribution under 
                                this clause.
                            ``(iii) Reference resident level.--
                                    ``(I) In general.--Except as 
                                otherwise provided in subclause (II), 
                                the reference resident level specified 
                                in this clause for a hospital is the 
                                resident level for the most recent cost 
                                reporting period of the hospital ending 
                                on or before the date of enactment of 
                                this paragraph, for which a cost report 
                                has been settled (or, if not, submitted 
                                (subject to audit)), as determined by 
                                the Secretary.
                                    ``(II) Use of most recent 
                                accounting period to recognize 
                                expansion of existing program or 
                                establishment of new program.--If a 
                                hospital submits a timely request to 
                                increase its resident level due to an 
                                expansion of an existing residency 
                                training program or the establishment 
                                of a new residency training program 
                                that is not reflected on the most 
                                recent cost report that has been 
                                settled (or, if not, submitted (subject 
                                to audit)), subject to the discretion 
                                of the Secretary, the reference 
                                resident level for such hospital is the 
                                resident level for the cost reporting 
                                period that includes the additional 
                                residents attributable to such 
                                expansion or establishment, as 
                                determined by the Secretary.
                    ``(C) Considerations in redistribution.--In 
                determining for which hospitals the increase in the 
                otherwise applicable resident limit is provided under 
                subparagraph (B) (other than an increase under 
                subparagraph (B)(ii)), the Secretary shall take into 
                account the demonstrated likelihood of the hospital 
                filling the positions within the first 3 cost reporting 
                periods beginning on or after July 1, 2010, made 
                available under this paragraph, as determined by the 
                Secretary.
                    ``(D) Priority for certain areas.--In determining 
                for which hospitals the increase in the otherwise 
                applicable resident limit is provided under 
                subparagraph (B) (other than an increase under 
                subparagraph (B)(ii)), the Secretary shall distribute 
                the increase to hospitals based on the following 
                criteria:
                            ``(i) The Secretary shall give preference 
                        to hospitals that submit applications for new 
                        primary care and general surgery residency 
                        positions. In the case of any increase based on 
                        such preference, a hospital shall ensure that--
                                    ``(I) the position made available 
                                as a result of such increase remains a 
                                primary care or general surgery 
                                residency position for not less than 10 
                                years after the date on which the 
                                position is filled; and
                                    ``(II) the total number of primary 
                                care and general surgery residency 
                                positions in the hospital (determined 
                                based on the number of such positions 
                                as of the date of such increase, 
                                including any position added as a 
                                result of such increase) is not 
                                decreased during such 10-year period.
                        In the case where the Secretary determines that 
                        a hospital no longer meets the requirement of 
                        subclause (II), the Secretary may reduce the 
                        otherwise applicable resident limit of the 
                        hospital by the amount by which such limit was 
                        increased under this paragraph.
                            ``(ii) The Secretary shall give preference 
                        to hospitals that emphasize training in 
                        community health centers and other community-
                        based clinical settings.
                            ``(iii) The Secretary shall give preference 
                        to hospitals in States that have more medical 
                        students than residency positions available 
                        (including a greater preference for those 
                        States with smaller resident-to-medical-student 
                        ratios). In determining the number of medical 
                        students in a State for purposes of the 
                        preceding sentence, the Secretary shall include 
                        planned students at medical schools which have 
                        provisional accreditation by the Liaison 
                        Committee on Medical Education or the American 
                        Osteopathic Association.
                            ``(iv) The Secretary shall give preference 
                        to hospitals in States that have low resident-
                        to-population ratios (including a greater 
                        preference for those States with lower 
                        resident-to-population ratios).
                    ``(E) Limitation.--
                            ``(i) In general.--Except as provided in 
                        clause (ii), in no case may a hospital (other 
                        than a hospital described in subparagraph 
                        (B)(ii)(I), subject to the limitation under 
                        subparagraph (B)(ii)(III)) apply for more than 
                        50 full-time equivalent additional residency 
                        positions under this paragraph.
                            ``(ii) Increase in number of additional 
                        positions available for distribution.--The 
                        Secretary shall increase the number of full-
                        time equivalent additional residency positions 
                        a hospital may apply for under this paragraph 
                        if the Secretary determines that the number of 
                        additional residency positions available for 
                        distribution under subparagraph (A)(ii) exceeds 
                        the number of such applications approved.
                    ``(F) Application of per resident amounts for 
                primary care and nonprimary care.--With respect to 
                additional residency positions in a hospital 
                attributable to the increase provided under this 
                paragraph, the approved FTE resident amounts are deemed 
                to be equal to the hospital per resident amounts for 
                primary care and nonprimary care computed under 
                paragraph (2)(D) for that hospital.
                    ``(G) Distribution.--The Secretary shall distribute 
                the increase to hospitals under this paragraph not 
                later than 2 years after the date of enactment of this 
                paragraph.''.
    (b) IME.--
            (1) In general.--Section 1886(d)(5)(B)(v) of the Social 
        Security Act (42 U.S.C. 1395ww(d)(5)(B)(v)), in the second 
        sentence, is amended--
                    (A) by striking ``subsection (h)(7)'' and inserting 
                ``subsections (h)(7) and (h)(8)''; and
                    (B) by striking ``it applies'' and inserting ``they 
                apply''.
            (2) Conforming provision.--Section 1886(d)(5)(B) of the 
        Social Security Act (42 U.S.C. 1395ww(d)(5)(B)) is amended by 
        adding at the end the following clause:
            ``(x) For discharges occurring on or after the date of 
        enactment of this clause, insofar as an additional payment 
        amount under this subparagraph is attributable to resident 
        positions distributed to a hospital under subsection (h)(8)(B), 
        the indirect teaching adjustment factor shall be computed in 
        the same manner as provided under clause (ii) with respect to 
        such resident positions.''.

SEC. 3. COUNTING RESIDENT TIME IN OUTPATIENT SETTINGS.

    (a) GME.--Section 1886(h)(4)(E) of the Social Security Act (42 
U.S.C. 1395ww(h)) is amended--
            (1) by striking ``shall be counted and that all the time'' 
        and inserting ``shall be counted and that--
                            ``(i) effective for cost reporting periods 
                        beginning before July 1, 2009, all the time'';
            (2) in clause (i), as inserted by paragraph (1), by 
        striking the period at the end and inserting ``; and''; and
            (3) by inserting after clause (i), as so inserted, the 
        following new clause:
                            ``(ii) effective for cost reporting periods 
                        beginning on or after July 1, 2009, all the 
                        time so spent by a resident shall be counted 
                        towards the determination of full-time 
                        equivalency, without regard to the setting in 
                        which the activities are performed, if the 
                        hospital continues to incur the costs of the 
                        stipends and fringe benefits of the resident 
                        during the time the resident spends in that 
                        setting.''.
    (b) IME.--Section 1886(d)(5)(B)(iv) of the Social Security Act (42 
U.S.C. 1395ww(d)(5)(B)(iv)) is amended--
            (1) by striking ``(iv) Effective for discharges occurring 
        on or after October 1, 1997'' and inserting ``(iv)(A) Effective 
        for discharges occurring on or after October 1, 1997, and 
        before July 1, 2009''; and
            (2) by inserting after subparagraph (A), as inserted by 
        paragraph (1), the following new subparagraph:
                            ``(B) Effective for discharges occurring on 
                        or after July 1, 2009, all the time spent by an 
                        intern or resident in patient care activities 
                        at an entity in a nonhospital setting shall be 
                        counted towards the determination of full-time 
                        equivalency if the hospital continues to incur 
                        the costs of the stipends and fringe benefits 
                        of the intern or resident during the time the 
                        intern or resident spends in that setting.''.
    (c) Application.--The amendments made by this section shall not be 
applied in a manner that requires reopening of any settled hospital 
cost reports as to which there is not a jurisdictionally proper appeal 
pending as of the date of the enactment of this Act on the issue of 
payment for indirect costs of medical education under section 
1886(d)(5)(B) of the Social Security Act (42 U.S.C. 1395ww(d)(5)(B)) or 
for direct graduate medical education costs under section 1886(h) of 
such Act (42 U.S.C. 1395ww(h)).

SEC. 4. RULES FOR COUNTING RESIDENT TIME FOR DIDACTIC AND SCHOLARLY 
              ACTIVITIES AND OTHER ACTIVITIES.

    (a) GME.--Section 1886(h) of the Social Security Act (42 U.S.C. 
1395ww(h)), as amended by section 3, is amended--
            (1) in paragraph (4)(E)--
                    (A) by designating the first sentence as a clause 
                (i) with the heading ``In general'' and appropriate 
                indentation and by striking ``Such rules'' and 
                inserting ``Subject to clause (ii), such rules''; and
                    (B) by adding at the end the following new clause:
                            ``(ii) Treatment of certain nonhospital and 
                        didactic activities.--Such rules shall provide 
                        that all time spent by an intern or resident in 
                        an approved medical residency training program 
                        in a nonhospital setting that is primarily 
                        engaged in furnishing patient care (as defined 
                        in paragraph (5)(K)) in non-patient care 
                        activities, such as didactic conferences and 
                        seminars, but not including research not 
                        associated with the treatment or diagnosis of a 
                        particular patient, as such time and activities 
                        are defined by the Secretary, shall be counted 
                        toward the determination of full-time 
                        equivalency.'';
            (2) in paragraph (4), by adding at the end the following 
        new subparagraph:
                    ``(I) In determining the hospital's number of full-
                time equivalent residents for purposes of this 
                subsection, all the time that is spent by an intern or 
                resident in an approved medical residency training 
                program on vacation, sick leave, or other approved 
                leave, as such time is defined by the Secretary, and 
                that does not prolong the total time the resident is 
                participating in the approved program beyond the normal 
                duration of the program shall be counted toward the 
                determination of full-time equivalency.''; and
            (3) in paragraph (5), by adding at the end the following 
        new subparagraph:
                    ``(K) Nonhospital setting that is primarily engaged 
                in furnishing patient care.--The term `nonhospital 
                setting that is primarily engaged in furnishing patient 
                care' means a nonhospital setting in which the primary 
                activity is the care and treatment of patients, as 
                defined by the Secretary.''.
    (b) IME Determinations.--Section 1886(d)(5)(B) of such Act (42 
U.S.C. 1395ww(d)(5)(B)) is amended by adding at the end the following 
new clause:
                            ``(x)(I) The provisions of subparagraph (I) 
                        of subsection (h)(4) shall apply under this 
                        subparagraph in the same manner as they apply 
                        under such subsection.
                            ``(II) In determining the hospital's number 
                        of full-time equivalent residents for purposes 
                        of this subparagraph, all the time spent by an 
                        intern or resident in an approved medical 
                        residency training program in non-patient care 
                        activities, such as didactic conferences and 
                        seminars, as such time and activities are 
                        defined by the Secretary, that occurs in the 
                        hospital shall be counted toward the 
                        determination of full-time equivalency if the 
                        hospital--
                                    ``(aa) is recognized as a 
                                subsection (d) hospital;
                                    ``(bb) is recognized as a 
                                subsection (d) Puerto Rico hospital;
                                    ``(cc) is reimbursed under a 
                                reimbursement system authorized under 
                                section 1814(b)(3); or
                                    ``(dd) is a provider-based hospital 
                                outpatient department.
                            ``(III) In determining the hospital's 
                        number of full-time equivalent residents for 
                        purposes of this subparagraph, all the time 
                        spent by an intern or resident in an approved 
                        medical residency training program in research 
                        activities that are not associated with the 
                        treatment or diagnosis of a particular patient, 
                        as such time and activities are defined by the 
                        Secretary, shall not be counted toward the 
                        determination of full-time equivalency.''.
    (c) Effective Dates; Application.--
            (1) In general.--Except as otherwise provided, the 
        Secretary of Health and Human Services shall implement the 
        amendments made by this section in a manner so as to apply to 
        cost reporting periods beginning on or after January 1, 1983.
            (2) Direct gme.--Section 1886(h)(4)(E)(ii) of the Social 
        Security Act, as added by subsection (a)(1)(B), shall apply to 
        cost reporting periods beginning on or after July 1, 2008.
            (3) IME.--Section 1886(d)(5)(B)(x)(III) of the Social 
        Security Act, as added by subsection (b), shall apply to cost 
        reporting periods beginning on or after October 1, 2001. Such 
        section, as so added, shall not give rise to any inference on 
        how the law in effect prior to such date should be interpreted.
            (4) Application.--The amendments made by this section shall 
        not be applied in a manner that requires reopening of any 
        settled hospital cost reports as to which there is not a 
        jurisdictionally proper appeal pending as of the date of the 
        enactment of this Act on the issue of payment for indirect 
        costs of medical education under section 1886(d)(5)(B) of the 
        Social Security Act or for direct graduate medical education 
        costs under section 1886(h) of such Act.

SEC. 5. PRESERVATION OF RESIDENT CAP POSITIONS FROM CLOSED AND ACQUIRED 
              HOSPITALS.

    (a) GME.--Section 1886(h)(4)(H) of the Social Security Act (42 
U.S.C. 1395ww(h)(4)(H)) is amended by adding at the end the following 
new clauses:
                            ``(vi) Redistribution of residency slots 
                        after a hospital closes.--
                                    ``(I) In general.--Subject to the 
                                succeeding provisions of this clause, 
                                the Secretary shall, by regulation, 
                                establish a process under which, in the 
                                case where a hospital with an approved 
                                medical residency program closes on or 
                                after the date of enactment of the 
                                Balanced Budget Act of 1997, the 
                                Secretary shall increase the otherwise 
                                applicable resident limit under this 
                                paragraph for other hospitals in 
                                accordance with this clause.
                                    ``(II) Priority for hospitals in 
                                certain areas.--Subject to the 
                                succeeding provisions of this clause, 
                                in determining for which hospitals the 
                                increase in the otherwise applicable 
                                resident limit is provided under such 
                                process, the Secretary shall distribute 
                                the increase to hospitals located in 
                                the following priority order (with 
                                preference given within each category 
                                to hospitals that are members of the 
                                same affiliated group (as defined by 
                                the Secretary under clause (ii)) as the 
                                closed hospital):
                                            ``(aa) First, to hospitals 
                                        located in the same core-based 
                                        statistical area as, or a core-
                                        based statistical area 
                                        contiguous to, the hospital 
                                        that closed.
                                            ``(bb) Second, to hospitals 
                                        located in the same State as 
                                        the hospital that closed.
                                            ``(cc) Third, to hospitals 
                                        located in the same region of 
                                        the country as the hospital 
                                        that closed.
                                            ``(dd) Fourth, to all other 
                                        hospitals.
                                    ``(III) Requirement hospital likely 
                                to fill position within certain time 
                                period.--The Secretary may only 
                                increase the otherwise applicable 
                                resident limit of a hospital under such 
                                process if the Secretary determines the 
                                hospital has demonstrated a likelihood 
                                of filling the positions made available 
                                under this clause within 3 years.
                                    ``(IV) Limitation.--The aggregate 
                                number of increases in the otherwise 
                                applicable resident limits for 
                                hospitals under this clause shall be 
                                equal to the number of resident 
                                positions in the approved medical 
                                residency programs that closed on or 
                                after the date described in subclause 
                                (I).
                            ``(vii) Special rule for acquired 
                        hospitals.--
                                    ``(I) In general.--In the case of a 
                                hospital that is acquired (through any 
                                mechanism) by another entity with the 
                                approval of a bankruptcy court, during 
                                a period determined by the Secretary 
                                (but not less than 3 years), the 
                                applicable resident limit of the 
                                acquired hospital shall, except as 
                                provided in subclause (II), be the 
                                applicable resident limit of the 
                                hospital that was acquired (as of the 
                                date immediately before the 
                                acquisition), without regard to whether 
                                the acquiring entity accepts assignment 
                                of the Medicare provider agreement of 
                                the hospital that was acquired, so long 
                                as the acquiring entity continues to 
                                operate the hospital that was acquired 
                                and to furnish services, medical 
                                residency programs, and volume of 
                                patients similar to the services, 
                                medical residency programs, and volume 
                                of patients of the hospital that was 
                                acquired (as determined by the 
                                Secretary) during such period.
                                    ``(II) Limitation.--Subclause (I) 
                                shall only apply in the case where an 
                                acquiring entity waives the right as a 
                                new provider under the program under 
                                this title to have the otherwise 
                                applicable resident limit of the 
                                acquired hospital re-established or 
                                increased.''.
    (b) IME.--Section 1886(d)(5)(B)(v) of the Social Security Act (42 
U.S.C. 1395ww(d)(5)(B)(v)), in the second sentence, as amended by 
section 3, is amended by striking ``subsections (h)(7) and (h)(8)'' and 
inserting ``subsections (h)(4)(H)(vi), (h)(4)(H)(vii), (h)(7), and 
(h)(8)''.
    (c) Application.--The amendments made by this section shall not be 
applied in a manner that requires reopening of any settled hospital 
cost reports as to which there is not a jurisdictionally proper appeal 
pending as of the date of the enactment of this Act on the issue of 
payment for indirect costs of medical education under section 
1886(d)(5)(B) of the Social Security Act (42 U.S.C. 1395ww(d)(5)(B)) or 
for direct graduate medical education costs under section 1886(h) of 
such Act (42 U.S.C. Section 1395ww(h)).
    (d) No Effect on Temporary FTE Cap Adjustments.--The amendments 
made by this section shall not effect any temporary adjustment to a 
hospital's FTE cap under section 413.79(h) of title 42, Code of Federal 
Regulations (as in effect on the date of enactment of this Act).
                                 <all>