[Congressional Record Volume 155, Number 66 (Friday, May 1, 2009)]
[Senate]
[Pages S5020-S5022]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DURBIN (for himself, Mr. Bingaman, Mr. Casey, and Mr. 
        Feingold):
  S. 957. A bill to amend the Public Health Service Act to ensure that 
victims of public health emergencies have meaningful and immediate 
access to medically necessary health care services; to the Committee on 
Health, Education, Labor, and Pensions.
  Mr. DURBIN: Mr. President, I ask unanimous consent that the text of 
the bill be printed in the Record.
  There being no objection, the text of the bill was ordered to be 
placed in the Record, as follows:

                                 S. 957

       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 ``Public Health Emergency 
     Response Act of 2009''.

     SEC. 2. FINDINGS AND PURPOSE.

       (a) Findings.--Congress finds the following:
       (1) Since 2000, the Secretary of Health and Human Services 
     has declared that a public health emergency existed 
     nationwide in response to the attacks of September 11th and 
     in response to Hurricanes Katrina and Rita.
       (2) In the event of a public health emergency, compliance 
     with recommendations to seek immediate care may be critical 
     to containing the spread of an infectious disease outbreak or 
     responding to a bioterror attack.
       (3) Nearly 16 percent of Americans lack health insurance 
     coverage.
       (4) Fears of out-of-pocket expenses may cause individuals 
     to delay seeking medical attention during a public health 
     emergency.
       (5) A public health emergency may disrupt health care 
     assistance programs for individuals with chronic conditions, 
     exacerbating the costs and risks to their health.
       (6) The uninsured could place great financial strain on 
     health care providers during a public health emergency.
       (7) The Department of Health and Human Services Pandemic 
     Influenza Plan projects that a pandemic influenza outbreak 
     could result in 45,000,000 additional outpatient visits, with 
     865,000 to 9,900,000 individuals requiring hospitalization, 
     depending upon the severity of the pandemic.

[[Page S5021]]

       (8) Hospitals in the United States could lose as much as 
     $3,900,000,000 in uncompensated care and cash flow losses in 
     the event of a severe pandemic.
       (9) Under current statute, no dedicated mechanism exists to 
     reimburse providers for uncompensated care during a public 
     health emergency.
       (b) Purposes.--The purposes of this Act are--
       (1) to provide temporary emergency health care coverage for 
     uninsured and certain otherwise qualified individuals in the 
     event of a public health emergency declared by the Secretary 
     of Health and Human Services;
       (2) to ensure that health care providers remain fiscally 
     solvent and are not overburdened by the cost of uncompensated 
     care during a public health emergency;
       (3) to eliminate a primary disincentive for uninsured and 
     certain otherwise qualified individuals to promptly seek 
     medical care during a public health emergency; and
       (4) to minimize delays in the provision of emergency health 
     care coverage by clarifying eligibility requirements and the 
     scope of such coverage and identifying the funding mechanisms 
     for emergency health care services.

     SEC. 3. EMERGENCY HEALTH CARE COVERAGE.

       (a) In General.--Title III of the Public Health Service Act 
     (42 U.S.C. 241 et seq.) is amended by inserting after section 
     319K the following new section:

     ``SEC. 319K-1. EMERGENCY HEALTH CARE COVERAGE.

       ``(a) Activation and Termination of Emergency Health Care 
     Coverage.--
       ``(1) Based on public health emergency.--
       ``(A) In general.--The Secretary may activate the coverage 
     of emergency health care services under this section only if 
     the Secretary determines that there is a public health 
     emergency.
       ``(B) Determination of public health emergency.--For 
     purposes of this section, there is a `public health 
     emergency' only if a public health emergency exists under 
     section 319.
       ``(2) Considerations.--In making a determination under 
     paragraph (1), the Secretary shall consider a range of 
     factors including the following:
       ``(A) The degree to which the emergency is likely to 
     overwhelm health care providers in the region.
       ``(B) The opportunity to minimize morbidity and mortality 
     through intervention under this section.
       ``(C) The estimated number of direct casualties of the 
     emergency.
       ``(D) The potential number of casualties in the absence of 
     intervention under this section (such as in the case of 
     infectious disease).
       ``(E) The potential adverse financial impacts on local 
     health care providers in the absence of activation of this 
     section.
       ``(F) Whether the need for health care services is of 
     sufficient severity and magnitude to warrant major assistance 
     under this section above and beyond the emergency services 
     otherwise available from the Federal Government.
       ``(G) Such other factors as the Secretary may deem 
     appropriate.
       ``(3) Termination and extension.--
       ``(A) In general.--Coverage of emergency health care 
     services under this section shall terminate, subject to 
     subsection (c)(2), upon the earlier of the following:
       ``(i) The Secretary's determination that a public health 
     emergency no longer exists.
       ``(ii) Subject to subparagraph (B), 90 days after the 
     initiation of coverage of emergency health care services.
       ``(B) Extension authority.--The Secretary may extend a 
     public health emergency for a second 90-day period, but only 
     if a report to Congress is made under paragraph (4) in 
     conjunction with making such extension.
       ``(4) Report.--
       ``(A) In general.--Prior to making an extension under 
     paragraph (3)(B), the Secretary shall transmit a report to 
     Congress that includes information on the nature of the 
     public health emergency and the expected duration of the 
     emergency. The Secretary shall include in such report 
     recommendations, if deemed appropriate, that Congress provide 
     a further extension of the public health emergency period 
     beyond the second 90-day period.
       ``(B) Report contents.--A report under subparagraph (A) 
     shall include a discussion of the health care needs of 
     emergency victims and affected individuals including the 
     likely need for follow-up care over a 2-year period.
       ``(5) Coordination.--The Secretary shall ensure that the 
     activation, implementation, and termination of emergency 
     health care services under this section in response to a 
     public health emergency is coordinated with all functions, 
     personnel, and assets of the Federal, State, local, and 
     tribal responses to the emergency.
       ``(6) Medical monitoring program.--The Secretary shall 
     establish a medical monitoring program for monitoring and 
     reporting on health care needs of the affected population 
     over time. At least annually during the 5-year period 
     following the date of a public health emergency, the 
     Secretary shall report to Congress on any continuing health 
     care needs of the affected population related to the public 
     health emergency. Such reports shall include recommendations 
     on how to ensure that emergency victims and affected 
     individuals have access to needed health care services.
       ``(b) Eligibility for Coverage of Emergency Health Care 
     Services.--
       ``(1) Limited eligibility.--
       ``(A) In general.--Eligibility for coverage of emergency 
     health care services under this section for a public health 
     emergency is limited to individuals who--
       ``(i) are emergency victims who are uninsured or otherwise 
     qualified; or
       ``(ii) are affected individuals who are uninsured.
       ``(B) Definitions.--For purposes of this section with 
     respect to a public health emergency:
       ``(i) Insured.--An individual is `insured' if the 
     individual has group or individual health insurance coverage 
     or publicly financed health insurance (as defined by the 
     Secretary).
       ``(ii) Otherwise qualified.--An individual is ``otherwise 
     qualified'' if the individual is insured but the Secretary 
     determines that the individual's health care insurance 
     coverage is not at least actuarially-equivalent to benchmark 
     coverage. In establishing such benchmark coverage, the 
     Secretary shall consider the standard Blue Cross/Blue Shield 
     preferred provider option service benefit plan described in 
     and offered under section 8903(1) of title 5, United States 
     Code.
       ``(iii) Uninsured.--An individual is `uninsured' if the 
     individual is not insured.
       ``(iv) Emergency victim.--An individual is an `emergency 
     victim' with respect to a public health emergency if the 
     individual needs health care services due to injuries or 
     disease resulting from the public health emergency.
       ``(v) Affected individual.--An individual is an `affected 
     individual' with respect to a public health emergency if--

       ``(I) the individual--

       ``(aa) resides in an assistance area designated for the 
     emergency (or whose residence was displaced by the 
     emergency); or
       ``(bb) in the case of such an emergency constituting a 
     pandemic flu or other infectious disease outbreak, resides in 
     the area affected by the outbreak (or whose residence was 
     displaced by the emergency); and

       ``(II) the individual's ability to access care or medicine 
     is disrupted as a result of the emergency.

       ``(2) Process.--The Secretary shall establish a streamlined 
     process for determining eligibility for emergency health care 
     services under this section. In establishing such process--
       ``(A) the Secretary shall recognize that in the context of 
     a public health emergency, individuals may be unable to 
     provide identification cards, health care insurance 
     information, or other documentation; and
       ``(B) the primary method for determining eligibility for 
     such services shall be an attestation provided to the health 
     care provider by the recipient of the services that the 
     recipient meets the eligibility criteria established under 
     paragraph (1)(A), with a standard alternative for unattended 
     minors and adults without the capacity to sign such an 
     attestation form.
       ``(3) Service delivery.--Providers may commence provision 
     of emergency health care services for an individual in the 
     absence of any centralized enrollment process, if the 
     provider has collected basic information, specified by the 
     Secretary, including the individual's name, address, social 
     security number, and existing health insurance coverage (if 
     any), that establishes a prima facie basis for eligibility, 
     except that such information shall not be required in cases 
     where the individual is unable to provide the information due 
     to disability or incapacitation.
       ``(c) Emergency Health Care Services.--
       ``(1) In general.--For purposes of this section, the term 
     `emergency health care services'--
       ``(A) means items and services for which payment may be 
     made under parts A and B of the Medicare program;
       ``(B) includes prescription drugs (not covered under such 
     part B) specified by the Secretary under subsection (g), 
     based on the formularies of the two or more prescription drug 
     plans under part D of the Medicare program with the largest 
     enrollment;
       ``(C) may include drugs, devices, biological products, and 
     other health care products, if such products are authorized 
     for use by the Food and Drug Administration pursuant to an 
     alternate authority, including the emergency use authority 
     under section 564 of the Federal Food, Drug, and Cosmetic Act 
     (21 U.S.C. 360bbb-3); and
       ``(D) for an affected individual, is limited to those items 
     and services described under subparagraphs (A), (B) or (C) 
     that a third-party payor, such as a government program or 
     charitable organization, reimbursed or otherwise provided to 
     an affected individual during the 90 days prior to the 
     declaration of the public health emergency.
       ``(2) Not medicare, medicaid, or schip benefits.--The 
     emergency health care services provided under this section 
     are not benefits under Medicare, Medicaid or SCHIP. Nothing 
     in this section shall be interpreted as altering or otherwise 
     conflicting with titles XVIII, XIX, or XXI of the Social 
     Security Act.
       ``(3) Completion of treatment for emergency victims.--
     Notwithstanding termination of the coverage of emergency 
     health care services pursuant to subsection (a)(3), the 
     Secretary may identify a subgroup of emergency victims on a 
     case-by-case basis or otherwise to continue receiving 
     coverage of emergency health care services for up to an 
     additional 60 days. Such emergency health care services 
     provided after the termination date shall be limited to 
     services and items

[[Page S5022]]

     that are medically necessary to treat an injury or disease 
     resulting directly from the public health emergency involved.
       ``(d) Covered Providers.--
       ``(1) In general.--Subject to paragraph (2), health care 
     services are not covered under this section unless they are 
     furnished by a health care provider that--
       ``(A) has a valid provider number under the Medicare 
     program, the Medicaid program, or SCHIP;
       ``(B) is in good standing with such program; and
       ``(C) is not excluded from participation in a Federal 
     health care program (as defined in section 1128B(f) of the 
     Social Security Act (42 U.S.C. 1320a-7b(f))).
       ``(2) Waiver authority.--
       ``(A) In general.--The Secretary may by regulation waive 
     certain requirements for provider enrollment that otherwise 
     apply under the Medicare or Medicaid program or under SCHIP 
     to ensure an adequate supply of health care providers (such 
     as nurses and other health care providers who do not 
     typically participate in the Medicare or Medicaid program or 
     SCHIP) and services in the case of a public health emergency. 
     Such requirements may include the requirement that a licensed 
     physician or other health care professional holds a license 
     in the State in which the professional provides services or 
     is otherwise authorized under State law to provide the 
     services involved.
       ``(B) Report on emergency system for advance registration 
     of volunteer health professionals (esar-vhp).--Not later than 
     180 days after the date of the enactment of this section, the 
     Secretary shall submit to Congress a report on the number of 
     volunteers, by profession and credential level, enrolled in 
     the Emergency System for Advance Registration of Volunteer 
     Health Professionals (ESAR-VHP) that will be available to 
     each State in the event of a public health emergency. The 
     Secretary shall determine if the number of such volunteers is 
     adequate for interstate deployment in response to regional 
     requests for volunteers and, if not, shall include in the 
     report recommendations for actions to ensure an adequate 
     surge capacity for public health emergencies in defined 
     geographic areas.
       ``(3) Medicare and medicaid programs and schip defined.--
     For purposes of this section:
       ``(A) The term `Medicare program' means the program under 
     parts A, B, and D of title XVIII of the Social Security Act.
       ``(B) The term `Medicaid program' means the program of 
     medical assistance under title XIX of such Act.
       ``(C) The term `SCHIP' means the State children's health 
     insurance program under title XXI of such Act.
       ``(e) Payments and Claims Administration.--
       ``(1) Payment amount.--The amount of payment under this 
     section to a provider for emergency health care services 
     shall be equal to 100 percent of the payment rate for the 
     corresponding service under part A or B of the Medicare 
     program, or, in the case of prescription drugs and other 
     items and services not covered under either such part, such 
     amount as the Secretary may specify by rule. Such a provider 
     shall not be permitted to impose any cost-sharing or to 
     balance bill for services furnished under this section.
       ``(2) Use of medicare contractors.--The Secretary shall 
     enter into arrangements with Medicare administrative 
     contractors under which such contractors process claims for 
     emergency health care services under this section using the 
     claim forms, codes, and nomenclature in effect under the 
     Medicare program.
       ``(3) Application of secondary payer rules.--In the case of 
     payment under this section for emergency health care services 
     for otherwise qualified individuals who have some health 
     insurance coverage with respect to such services, the 
     administrative contractors under paragraph (2) shall submit a 
     claim to the entity offering such coverage to recoup all or 
     some of such payment, reflecting whatever amount the entity 
     would normally reimburse for each covered service. The 
     provisions of section 1862(b) of the Social Security Act (42 
     U.S.C. 1395y(b)) shall apply to benefits provided under this 
     section in the same manner as they apply to benefits provided 
     under the Medicare program.
       ``(4) Payments for emergency health care services and 
     related costs.--Payments to provide, and costs to administer, 
     emergency health care services under this section shall be 
     made from the Public Health Emergency Fund, as provided under 
     subsection (f)(1).
       ``(5) Attestation requirement.--No payment shall be made 
     under this section to a provider for emergency health care 
     services unless the provider has executed an attestation 
     that--
       ``(A) the provider has notified the administrative 
     contractor of any third-party payment received or claims 
     pending for such services;
       ``(B) the recipient of the services has executed an 
     attestation or otherwise satisfies the eligibility criteria 
     established under subsection (b); and
       ``(C) the services were medically necessary.
       ``(f) Public Health Emergency Fund; Fraud and Abuse 
     Provisions.--
       ``(1) The public health emergency fund.--There is 
     authorized to be appropriated to the Public Health Emergency 
     Fund (established under section 319(b)) such sums as may be 
     necessary under this section for payments to provide 
     emergency health care services and costs to administer the 
     services during a public health emergency.
       ``(2) No use of medicare funds.--No funds under the 
     Medicare program shall be made available or used to make 
     payments under this section.
       ``(3) Fraud and abuse provisions.--Providers and recipients 
     of emergency health care services under this section shall be 
     subject to the Federal fraud and abuse protections that apply 
     to Federal health care programs as defined in section 
     1128B(f) of the Social Security Act (42 U.S.C. 1320a-7b(f)).
       ``(g) Rulemaking.--The Secretary may issue regulations to 
     carry out this section and shall use a negotiated rulemaking 
     process to advise the Secretary on key issues regarding the 
     implementation of this section.
       ``(h) Public Health Emergency Planning and the Education of 
     Health Care Providers and the General Population.--
       ``(1) Planning for coverage of emergency health care 
     services in public health emergencies.--The Secretary shall, 
     not later than 90 days after the date of the enactment of 
     this section, initiate planning to carry out this section, 
     including planning relating to implementation of the payments 
     and claims administration under subsection (e), in the event 
     of activation of emergency health care coverage.
       ``(2) Outreach and public education campaign.--The 
     Secretary shall conduct an outreach and public education 
     campaign to inform health care providers and the general 
     public about the availability of emergency health care 
     coverage under this section during the period of the 
     emergency. Such campaign shall include--
       ``(A) an explanation of the emergency health care coverage 
     program under this section;
       ``(B) claim forms and instructions for health care 
     providers to use when providing covered services during the 
     emergency period; and
       ``(C) special outreach initiatives to vulnerable and hard-
     to-reach populations.
       ``(3) Authorization of appropriations.--There are 
     authorized to be appropriated for each fiscal year (beginning 
     with fiscal year 2009) $7,000,000 to carry out paragraphs (1) 
     and (2) during the fiscal year.
       ``(i) Application of Policies Under Other Federal Health 
     Care Programs.--As specified in subsections (c) through (e), 
     the Secretary may adopt in whole or in part the coverage, 
     reimbursement, provider enrollment, and other policies used 
     under the Medicare program and other Federal health care 
     programs in administering emergency health care services 
     under this section to the extent consistent with this 
     section.''.
       (b) Application of Public Health Emergency Fund.--Section 
     319(b)(1) of such Act (42 U.S.C. 247d(b)(1)) is amended--
       (1) by inserting ``and section 319K-1'' after ``subsection 
     (a)''; and
       (2) by striking ``such subsection'' and inserting 
     ``subsection (a)''.
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