[Congressional Record Volume 155, Number 189 (Monday, December 14, 2009)]
[Senate]
[Pages S13193-S13201]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           TEXT OF AMENDMENTS

  SA 3201. Mr. BROWNBACK submitted an amendment intended to be proposed 
to amendment SA 2786 proposed by Mr. Reid (for himself, Mr. Baucus, Mr. 
Dodd, and Mr. Harkin) to the bill H.R. 3590, to amend the Internal 
Revenue Code of 1986 to modify the first-time homebuyers credit in the 
case of members of the Armed Forces and certain other Federal 
employees, and for other purposes; which was ordered to lie on the 
table; as follows:

       On page 377, between lines 14 and 15, insert the following:

     SEC. 1562. CONSCIENCE PROTECTION.

       (a) Permissible Accommodations.--Nothing in this Act (or an 
     amendment made by this Act) shall be construed to--
       (1) require a health plan or health insurance issuer to 
     provide coverage of any item or service to which the health 
     insurance issuer, purchaser, or plan sponsor has a moral or 
     religious objection, or require such coverage for the purpose 
     of--
       (A) qualifying as a qualified health plan or participating 
     in an Exchange; or
       (B) being eligible for a premium tax credit or cost-sharing 
     reduction or avoiding an assessable payment under section 
     4980H of the Internal Revenue Code of 1986 (as added by 
     section 1513) or any other tax, assessment, or penalty; or
       (2) require an individual or institutional health care 
     provider to provide, participate in, or refer for an item or 
     service to which such provider has a moral or religious 
     objection, or require such conduct as a condition of 
     contracting with a qualified health plan.
       (b) Nondiscrimination.--No person implementing this Act (or 
     an amendment made by this Act) shall discriminate against a 
     health plan, health insurance issuer, purchaser, plan 
     sponsor, or individual or institutional health care provider 
     based in whole or in part on an accommodation permitted under 
     subsection (a).
       (c) Exception.--Nothing in this section authorizes a health 
     plan, health insurance issuer, or individual or institutional 
     health care provider to deny all medical care or to deny 
     life-preserving care to an individual based on the view that, 
     because of a disability or other characteristic of such 
     individual, extending the life or preserving the health of 
     such individual is less valuable than extending the life or 
     preserving the health of another individual who does not have 
     such disability or other characteristic.
                                 ______
                                 
  SA 3202. Mr. BEGICH submitted an amendment intended to be proposed to 
amendment SA 2786 proposed by Mr. Reid (for himself, Mr. Baucus, Mr. 
Dodd, and Mr. Harkin) to the bill H.R. 3590, to amend the Internal 
Revenue Code of 1986 to modify the first-time homebuyers credit in the 
case of members of the Armed Forces and certain other Federal 
employees, and for other purposes; which was ordered to lie on the 
table; as follows:

       On page 2074, after line 25, add the following:

     SEC. 9___. DISALLOWANCE OF DEDUCTION FOR DIRECT TO CONSUMER 
                   ADVERTISING EXPENSES FOR PRESCRIPTION 
                   PHARMACEUTICALS.

       (a) In General.--Part IX of subchapter B of chapter 1 of 
     subtitle A of the Internal Revenue Code of 1986 (relating to 
     items not deductible) is amended by adding at the end the 
     following new section:

     ``SEC. 280I. DISALLOWANCE OF DEDUCTION FOR DIRECT TO CONSUMER 
                   ADVERTISING EXPENSES FOR PRESCRIPTION 
                   PHARMACEUTICALS.

       ``No deduction shall be allowed under this chapter for 
     expenses relating to direct to consumer advertising in any 
     media for the sale and use of prescription pharmaceuticals 
     for any taxable year.''.
       (b) Conforming Amendment.--The table of sections for such 
     part IX of the Internal Revenue Code of 1986 is amended by 
     adding after the item relating to section 280H the following 
     new item:

``Sec. 280I. Disallowance of deduction for direct to consumer 
              advertising expenses for prescription pharmaceuticals.''.

       (c) Effective Date.--The amendments made by this section 
     shall apply to amounts paid or incurred after the date of the 
     enactment of this Act, in taxable years ending after such 
     date.

     SEC. 9___. PHYSICAL LIFESTYLES FOR AMERICA'S YOUTH (PLAY) 
                   DEDUCTION.

       (a) In General.--Part VII of subchapter B of chapter 1 of 
     the Internal Revenue Code of 1986 is amended by redesignating 
     section 224 as section 225 and inserting after section 223 
     the following new section:

     ``SEC. 224. FEES FOR ORGANIZATIONS PROMOTING CHILDREN'S 
                   PHYSICAL ACTIVITY.

       ``(a) General Rule.--There shall be allowed as a deduction 
     under this chapter an amount equal to the lesser of--
       ``(1) the amount paid or incurred by the taxpayer during 
     the taxable year for the participation of a qualifying child 
     (as defined in section 152(c)) of the taxpayer in a qualified 
     organization, or
       ``(2) $500.
       ``(b) Limitations.--
       ``(1) In general.--No deduction shall be allowed under 
     subsection (a) with respect to any taxpayer whose adjusted 
     gross income for the taxable year exceeds $250,000.
       ``(2) Adjusted gross income.--For purposes of this 
     subsection, adjusted gross income shall be determined--
       ``(A) without regard to this section and sections 199, 911, 
     931, and 933, and
       ``(B) after the application of sections 86, 135, 137, 219, 
     221, 222, and 469.
       ``(c) Qualified Organization.--For purposes of this 
     section, the term `qualified organization' means any other 
     organization the principal activities of which are designed 
     to promote or provide for the physical activity of children, 
     as determined under guidelines published by the Secretary in 
     consultation with the Secretary of Health and Human 
     Services.''.
       (b) Clerical Amendment.--The table of sections for part VII 
     of subchapter B of chapter 1 of such Code is amended by 
     redesignating the item relating to section 224 as relating to 
     section 225 and inserting after the item relating to section 
     223 the following new item:

``Sec. 224. Fees for organizations promoting children's physical 
              activity.''.

       (c) Effective Date.--The amendments made by this section 
     shall apply to taxable years beginning after the date of the 
     enactment of this Act.
                                 ______
                                 
  SA 3203. Mr. BAYH (for himself, Ms. Klobuchar, Mr. Franken, Mr. Kohl, 
Mr. Kerry, Ms. Stabenow, and Mrs. Gillibrand) submitted an amendment 
intended to be proposed to amendment SA 2786 proposed by Mr. Reid (for 
himself, Mr. Baucus, Mr. Dodd, and Mr.

[[Page S13194]]

Harkin) to the bill H.R. 3590, to amend the Internal Revenue Code of 
1986 to modify the first-time homebuyers credit in the case of members 
of the Armed Forces and certain other Federal employees, and for other 
purposes; which was ordered to lie on the table; as follows:

       On page 2046, after line 24, add the following:

     SEC. 9___. MODIFICATION OF ANNUAL FEE ON MEDICAL DEVICE 
                   MANUFACTURERS AND IMPORTERS.

       (a) Delay in Imposition of Fee.--
       (1) In general.--Section 9009(i) of this Act is amended by 
     striking ``2008'' and inserting ``2011''.
       (2) Conforming amendment.--Section 9009(a)(1) of this Act 
     is amended by striking ``2009'' and inserting ``2012''.
       (b) Increase in Aggregate Fee Amount.--Section 9009(b)(1) 
     of this Act is amended by striking ``$2,000,000,000'' and 
     inserting ``$3,800,000,000 ($2,660,000 for calendar years 
     after 2019)''.
       (c) Increase in Gross Receipts From Sales Taken Into 
     Account.--The table in paragraph (2) of section 9009(b) of 
     this Act is amended to read as follows:


 
``With respect to a covered entity's
    aggregate gross receipts from      The percentage of gross receipts
   medical device sales during the          takes into account is:
       calendar year that are:
 
Not more than $100,000,000..........  0 percent
More than $100,000,000 but not more   50 percent
 than $150,000,000.
More than $150,000,000..............  100 percent.''.
 

       (d) Tax Treatment of Fees.--Subsection (e) of section 9009 
     of this Act is amended to read as follows:
       ``(e) Tax Treatment of Fees.--For purposes of subtitle F of 
     the Internal Revenue Code of 1986, the fees imposed by this 
     section shall be treated as excise taxes with respect to 
     which only civil actions for refund under procedures of such 
     subtitle shall apply.''.
                                 ______
                                 
  SA 3204. Mr. CARPER submitted an amendment intended to be proposed to 
amendment SA 2786 proposed by Mr. Reid (for himself, Mr. Baucus, Mr. 
Dodd, and Mr. Harkin) to the bill H.R. 3590, to amend the Internal 
Revenue Code of 1986 to modify the first-time homebuyers credit in the 
case of members of the Armed Forces and certain other Federal 
employees, and for other purposes; which was ordered to lie on the 
table; as follows:

       On page 1783, between lines 2 and 3, insert the following:

     SEC. 6412. MANDATORY REPORTING OF FRAUD BY MEDICARE ADVANTAGE 
                   PLANS, PRESCRIPTION DRUG PLANS, AND PROVIDERS 
                   OF SERVICES AND SUPPLIERS.

       (a) Mandatory Reporting by Medicare Advantage Plans and 
     Prescription Drug Plans.--Section 1857(d) of the Social 
     Security Act (42 U.S.C. 1395w-27(d)) is amended by adding at 
     the end the following new paragraph:
       ``(7) Reporting of probable fraud.--
       ``(A) In general.--Each Medicare Advantage organization 
     and, in accordance with section 1860D-12(b)(3)(C), each PDP 
     sponsor of a prescription drug plan shall, in accordance with 
     regulations established by the Secretary under subparagraph 
     (B), report to the Secretary and to the appropriate law 
     enforcement or oversight agencies any matter for which the 
     organization or sponsor has identified, from any source 
     (including the organization or sponsor itself), credible 
     evidence of fraud by subcontractors or others related to the 
     program under this part or part D, whether self-identified or 
     reported by another party.
       ``(B) Regulations.--Not later than 1 year after the date of 
     enactment of this paragraph, the Secretary shall establish 
     regulations to carry out this paragraph.''.
       (b) Mandatory Reporting by Providers of Services and 
     Suppliers.--Section 1866(j)(7)(B) of the Social Security Act, 
     as inserted by section 6401, is amended by adding at the end 
     the following sentence: ``Such core elements shall include, 
     to the extent determined appropriate by the Secretary, 
     internal monitoring and auditing of, and responding to, 
     identified deficiencies. Such response shall include 
     reporting to the Secretary and to the appropriate law 
     enforcement or oversight agency credible evidence of fraud 
     related to the program under this title, title XIX, or title 
     XXI.''.
       (c) Prompt and Appropriate Action by the Secretary.--The 
     Secretary shall take prompt and appropriate action to forward 
     information on fraud reported under sections 1857(d)(7) and 
     1866(j)(7)(B) of the Social Security Act, as added by 
     subsection (a) and amended by subsection (b), respectively, 
     to the appropriate agencies.
       (d) Annual Report to Congress.--Not later than October 1 of 
     each year, the Secretary of Health and Human Services (in 
     this section referred to as the ``Secretary'') shall submit 
     to Congress a report on general trends and conditions that 
     give rise to waste, fraud, and abuse, including identified 
     patterns of incidents, and general actions taken to address 
     such trends and conditions, together with recommendations for 
     such legislation and administrative action as the Secretary 
     determines as appropriate.
                                 ______
                                 
  SA 3205. Mr. COBURN submitted an amendment intended to be proposed to 
amendment SA 2786 proposed by Mr. Reid (for himself, Mr. Baucus, Mr. 
Dodd, and Mr. Harkin) to the bill H.R. 3590, to amend the Internal 
Revenue Code of 1986 to modify the first-time homebuyers credit in the 
case of members of the Armed Forces and certain other Federal 
employees, and for other purposes; which was ordered to lie on the 
table; as follows:

       On page 1542, between lines 10 and 11, insert the 
     following:
       (c) Exception for Certain Hospitals.--Section 1877 of the 
     Social Security Act (42 U.S.C. 1395nn), as amended by 
     subsection (a), is further amended--
       (1) in subsection (d)(2)(C), by striking ``in the case'' 
     and inserting ``except as provided in subsection (j), in the 
     case''; and
       (2) by adding at the end the following new subsection:
       ``(j) Exception for Certain Hospitals.--The requirements of 
     paragraph (3)(D) shall not apply to any hospital which is in 
     development as of the date of enactment of the Patient 
     Protection and Affordable Care Act.''.
                                 ______
                                 
  SA 3206. Mr. COBURN submitted an amendment intended to be proposed to 
amendment SA 2786 proposed by Mr. Reid (for himself, Mr. Baucus, Mr. 
Dodd, and Mr. Harkin) to the bill H.R. 3590, to amend the Internal 
Revenue Code of 1986 to modify the first-time homebuyers credit in the 
case of members of the Armed Forces and certain other Federal 
employees, and for other purposes; which was ordered to lie on the 
table; as follows:

       On page 1542, between lines 10 and 11, insert the 
     following:
       (c) Additional Time for Hospitals to Meet Requirements.--
       (1) In general.--Section 1877 of the Social Security Act 
     (42 U.S.C. 1395nn), as amended by subsection (a), is further 
     amended--
       (A) in subsection (d)(3)(D), by striking ``not later than 
     18 months after the date of the enactment of this 
     subparagraph'' and inserting ``not later than January 1, 
     2014''; and
       (B) in subsection (i)--
       (i) in paragraph (1)--

       (I) in subparagraph (A), by striking ``February 1, 2010'' 
     and inserting ``January 1, 2014'';
       (II) in subparagraph (D), by striking ``the date of 
     enactment of this subsection'' and inserting ``January 1, 
     2014''; and
       (III) in subparagraph (F), by striking ``the date of 
     enactment of this subsection'' and inserting ``January 1, 
     2014''; and

       (ii) in paragraph (3)--

       (I) in subparagraph (A)--

       (aa) in clause (iii), by striking ``August 1, 2011'' and 
     inserting ``January 1, 2014''; and
       (bb) in clause (iv), by striking ``July 1, 2011'' and 
     inserting ``December 1, 2013''; and

       (II) in subparagraph (C)(iii), by striking ``the date of 
     enactment of this subsection'' and inserting ``January 1, 
     2014''.

       (2) Conforming amendment regarding conduct of audits.--
     Subsection (b)(2) is amended by striking ``November 1, 2011'' 
     and inserting ``February 1, 2014''.
                                 ______
                                 
  SA 3207. Mr. GRASSLEY submitted an amendment intended to be proposed 
to amendment SA 2786 proposed by Mr. Reid (for himself, Mr. Baucus, Mr. 
Dodd, and Mr. Harkin) to the bill H.R. 3590, to amend the Internal 
Revenue Code of 1986 to modify the first-time homebuyers credit in the 
case of members of the Armed Forces and certain other Federal 
employees, and for other purposes; which was ordered to lie on the 
table; as follows:

       On page 268, after line 19, insert the following:

     SEC. 1403. FAIL-SAFE MECHANISM TO PREVENT INCREASE IN FEDERAL 
                   BUDGET DEFICIT.

       (a) Estimate and Certification of Effect of Act on Budget 
     Deficit.--
       (1) In general.--The President shall include in the 
     submission under section 1105 of title 31, United States 
     Code, of the budget of the United States Government for 
     fiscal year 2013 and each fiscal year thereafter an estimate 
     of the budgetary effects for the fiscal year of the 
     provisions of (and the amendments made by) this Act, based on 
     the information available as of the date of such submission.
       (2) Certification.--The President shall include with the 
     estimate under paragraph (1) for any fiscal year a 
     certification as to whether the sum of the decreases in 
     revenues and increases in outlays for the fiscal year by 
     reason of the provisions of (and the amendments made by) this 
     Act exceed (or do not exceed) the sum of the increases in 
     revenues and decreases in outlays for the fiscal year by 
     reason of the provisions and amendments.
       (b) Effect of Deficit.--If the President certifies an 
     excess under subsection (a)(2) for any fiscal year--
       (1) the President shall include with the certification the 
     percentage by which the credits allowable under section 36B 
     of the Internal Revenue Code of 1986 and the cost-sharing 
     subsidies under section 1402 must be reduced for plan years 
     beginning during such

[[Page S13195]]

     fiscal year such that there is an aggregate decrease in the 
     amount of such credits and subsidies equal to the amount of 
     such excess; and
       (2) the President shall instruct the Secretary of Health 
     and Human Services and the Secretary of the Treasury to 
     reduce such credits and subsidies for such plan years by such 
     percentage.
                                 ______
                                 
  SA 3208. Mr. GRASSLEY submitted an amendment intended to be proposed 
to amendment SA 2786 proposed by Mr. Reid (for himself, Mr. Baucus, Mr. 
Dodd, and Mr. Harkin) to the bill H.R. 3590, to amend the Internal 
Revenue Code of 1986 to modify the first-time homebuyers credit in the 
case of members of the Armed Forces and certain other Federal 
employees, and for other purposes; which was ordered to lie on the 
table; as follows:

       On page 1783, between lines 2 and 3, insert the following:

     SEC. 6412. EXTENSION OF NUMBER OF DAYS IN WHICH MEDICARE 
                   CLAIMS ARE REQUIRED TO BE PAID IN ORDER TO 
                   PREVENT OR COMBAT FRAUD, WASTE, OR ABUSE.

       (a) Part A Claims.--Section 1816(c)(2) of the Social 
     Security Act (42 U.S.C. 1395h(c)(2)) is amended--
       (1) in subparagraph (B)(ii)(V), by striking ``with 
     respect'' and inserting ``subject to subparagraph (D), with 
     respect''; and
       (2) by adding at the end the following new subparagraph:
       ``(D)(i) Upon a determination by the Secretary that there 
     is a likelihood of fraud, waste, or abuse involving a 
     particular category of providers of services or suppliers, 
     categories of providers of services or suppliers in a certain 
     geographic area, or individual providers of services or 
     suppliers, the Secretary shall extend the number of calendar 
     days described in subparagraph (B)(ii)(V) to--
       ``(I) up to 365 calendar days with respect to claims 
     submitted by--

       ``(aa) categories of providers of services or suppliers; or
       ``(bb) categories of providers of services or suppliers in 
     a certain geographic area; or

       ``(II) such time that the Secretary determines is necessary 
     to ensure that the claims with respect to individual 
     providers of services or suppliers are clean claims.
       ``(ii) During the extended period of time under subclauses 
     (I) and (II) of clause (ii), the Secretary shall engage in 
     heightened scrutiny of claims, such as prepayment review and 
     other methods the Secretary determines to be appropriate.
       ``(iii) Not later than 90 days after the date of enactment 
     of this subparagraph and not less than annually thereafter, 
     the Inspector General of the Department of Health and Human 
     Services shall submit to the Secretary a report containing 
     recommendations with respect to the application of this 
     subparagraph and section 1842(c)(2)(D). Not later than 60 
     days after receiving such a report, the Secretary shall 
     submit to the Inspector General a written response to the 
     recommendations contained in the report.
       ``(iv) There shall be no administrative or judicial review 
     under section 1869, section 1878, or otherwise of the 
     implementation of this subparagraph by the Secretary.''.
       (b) Part B Claims.--Section 1842(c)(2) of the Social 
     Security Act (42 U.S.C. 1395u(c)(2)) is amended--
       (1) in subparagraph (B)(ii)(V), by striking ``with 
     respect'' and inserting ``subject to subparagraph (D), with 
     respect''; and
       (2) by adding at the end the following new subparagraph:
       ``(D)(i) Upon a determination by the Secretary that there 
     is a likelihood of fraud, waste, or abuse involving a 
     particular category of providers of services or suppliers, 
     categories of providers of services or suppliers in a certain 
     geographic area, or individual providers of services or 
     suppliers, the Secretary shall extend the number of calendar 
     days described in subparagraph (B)(ii)(V) to--
       ``(I) up to 365 calendar days with respect to claims 
     submitted by--

       ``(aa) categories of providers of services or suppliers; or
       ``(bb) categories of providers of services or suppliers in 
     a certain geographic area; or

       ``(II) such time that the Secretary determines is necessary 
     to ensure that the claims with respect to individual 
     providers of services or suppliers are clean claims.
       ``(ii) During the extended period of time under subclauses 
     (I) and (II) of clause (ii), the Secretary shall engage in 
     heightened scrutiny of claims, such as prepayment review and 
     other methods the Secretary determines to be appropriate.
       ``(iii) There shall be no administrative or judicial review 
     under section 1869, section 1878, or otherwise of the 
     implementation of this subparagraph by the Secretary.''.
       (c) Effective Date.--
       (1) In general.--The amendments made by this section shall 
     take effect on the day that is 6 months after the date of the 
     enactment of this Act.
       (2) Expediting implementation.--The Secretary shall 
     promulgate regulations to carry out the amendments made by 
     this section which may be effective and final immediately on 
     an interim basis as of the date of publication of the interim 
     final regulation. If the Secretary provides for an interim 
     final regulation, the Secretary shall provide for a period of 
     public comment on such regulation after the date of 
     publication. The Secretary may change or revise such 
     regulation after completion of the period of public comment.
                                 ______
                                 
  SA 3209. Mr. GRASSLEY submitted an amendment intended to be proposed 
to amendment SA 2786 proposed by Mr. Reid (for himself, Mr. Baucus, Mr. 
Dodd, and Mr. Harkin) to the bill H.R. 3590, to amend the Internal 
Revenue Code of 1986 to modify the first-time homebuyers credit in the 
case of members of the Armed Forces and certain other Federal 
employees, and for other purposes; which was ordered to lie on the 
table; as follows:

       On page 823, after line 22, insert the following:

     SEC. 3125A. ADJUSTMENT TO LOW-VOLUME HOSPITAL PROVISION; 
                   QUALITY REPORTING FOR PSYCHIATRIC HOSPITALS.

       (a) Adjustment to Low-Volume Hospital Provision.--Section 
     1886(d)(12) of the Social Security Act (42 U.S.C. 
     1395ww(d)(12), as amended by section 3125, is amended--
       (1) in subparagraph (C)(i), by striking ``1,500 
     discharges'' and inserting ``1,600 discharges''; and
       (2) in subparagraph (D), by striking ``1,500 discharges'' 
     and inserting ``1,600 discharges''.
       (b) Quality Reporting for Psychiatric Hospitals.--Section 
     1886(s) of the Social Security Act, as added by section 
     3401(f), is amended by adding at the end the following new 
     paragraph:
       ``(4) Quality reporting.--
       ``(A) Reduction in update for failure to report.--
       ``(i) In general.--Under the system described in paragraph 
     (1), for rate year 2014 and each subsequent rate year, in the 
     case of a psychiatric hospital or psychiatric unit that does 
     not submit data to the Secretary in accordance with 
     subparagraph (C) with respect to such a rate year, any annual 
     update to a standard Federal rate for discharges for the 
     hospital during the rate year, and after application of 
     paragraph (2), shall be reduced by 2 percentage points.
       ``(ii) Special rule.--The application of this subparagraph 
     may result in such annual update being less than 0.0 for a 
     rate year, and may result in payment rates under the system 
     described in paragraph (1) for a rate year being less than 
     such payment rates for the preceding rate year.
       ``(B) Noncumulative application.--Any reduction under 
     subparagraph (A) shall apply only with respect to the rate 
     year involved and the Secretary shall not take into account 
     such reduction in computing the payment amount under the 
     system described in paragraph (1) for a subsequent rate year.
       ``(C) Submission of quality data.--For rate year 2014 and 
     each subsequent rate year, each psychiatric hospital and 
     psychiatric unit shall submit to the Secretary data on 
     quality measures specified under subparagraph (D). Such data 
     shall be submitted in a form and manner, and at a time, 
     specified by the Secretary for purposes of this subparagraph.
       ``(D) Quality measures.--
       ``(i) In general.--Subject to clause (ii), any measure 
     specified by the Secretary under this subparagraph must have 
     been endorsed by the entity with a contract under section 
     1890(a).
       ``(ii) Exception.--In the case of a specified area or 
     medical topic determined appropriate by the Secretary for 
     which a feasible and practical measure has not been endorsed 
     by the entity with a contract under section 1890(a), the 
     Secretary may specify a measure that is not so endorsed as 
     long as due consideration is given to measures that have been 
     endorsed or adopted by a consensus organization identified by 
     the Secretary.
       ``(iii) Time frame.--Not later than October 1, 2012, the 
     Secretary shall publish the measures selected under this 
     subparagraph that will be applicable with respect to rate 
     year 2014.
       ``(E) Public availability of data submitted.--The Secretary 
     shall establish procedures for making data submitted under 
     subparagraph (C) available to the public. Such procedures 
     shall ensure that a psychiatric hospital and a psychiatric 
     unit has the opportunity to review the data that is to be 
     made public with respect to the hospital or unit prior to 
     such data being made public. The Secretary shall report 
     quality measures that relate to services furnished in 
     inpatient settings in psychiatric hospitals and psychiatric 
     units on the Internet website of the Centers for Medicare & 
     Medicaid Services.''.
                                 ______
                                 
  SA 3210. Mrs. HUTCHISON submitted an amendment intended to be 
proposed to amendment SA 2786 proposed by Mr. Reid (for himself, Mr. 
Baucus, Mr. Dodd, and Mr. Harkin) to the bill H.R. 3590, to amend the 
Internal Revenue Code of 1986 to modify the first-time homebuyers 
credit in the case of members of the Armed Forces and certain other 
Federal employees, and for other purposes; which was ordered to lie on 
the table; as follows:

       On page 309, strike lines 1 through 5, and insert the 
     following:
       (2) Such amount multiplied by a fraction the numerator of 
     which is the average annual wages of the employer in excess 
     of the dollar amount in effect under subsection (d)(3)(B) and 
     the denominator of which is an

[[Page S13196]]

     amount equal to 1.5 times such dollar amount.
       On page 309, line 14, strike ``twice'' and insert ``2.5 
     times''.
       On page 314, line 3, strike ``2-consecutive-taxable year'' 
     and insert ``4-consecutive-taxable year''.
       On page 318, line 6, strike ``2-year'' and insert ``4-
     year''.
       At the end of the amendment, insert:

                TITLE X--MEDICAL CARE ACCESS PROTECTION

     SECTION 10001. SHORT TITLE.

       This title may be cited as the ``Medical Care Access 
     Protection Act of 2009'' or the ``MCAP Act''.

     SEC. 10002. 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. 10003. 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. Such term 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 goods or services.--The term ``health care 
     goods or services'' means any goods or services provided by a 
     health care institution, provider, or by any individual 
     working under the supervision of a health care provider, that 
     relates to the diagnosis, prevention, care, or treatment of 
     any human disease or impairment, or the assessment of the 
     health of human beings.
       (8) Health care institution.--The term ``health care 
     institution'' means any entity licensed under Federal or 
     State law to provide health care services (including but not 
     limited to ambulatory surgical centers, assisted living 
     facilities, emergency medical services providers, hospices, 
     hospitals and hospital systems, nursing homes, or other 
     entities licensed to provide such services).
       (9) Health care lawsuit.--The term ``health care lawsuit'' 
     means any health care liability claim concerning the 
     provision of health care goods or services affecting 
     interstate commerce, or any health care liability action 
     concerning the provision of (or the failure to provide) 
     health care goods or services affecting interstate commerce, 
     brought in a State or Federal court or pursuant to an 
     alternative dispute resolution system, against a health care 
     provider or a health care institution 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.
       (10) 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 or a health 
     care institution 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.
       (11) 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 or health 
     care institution, including 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, 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.
       (12) Health care provider.--
       (A) In general.--The term ``health care provider'' means 
     any person (including but not limited to a physician (as 
     defined by section 1861(r) of the Social Security Act (42 
     U.S.C. 1395x(r)), registered nurse, dentist, podiatrist, 
     pharmacist, chiropractor, or optometrist) required by State 
     or Federal law 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.
       (B) Treatment of certain professional associations.--For 
     purposes of this Act, a professional association that is 
     organized under State law by an individual physician or group 
     of physicians, a partnership or limited liability partnership 
     formed by a group of physicians, a nonprofit health 
     corporation certified under State law, or a company formed by 
     a group of physicians under State law shall be treated as a 
     health care provider under subparagraph (A).
       (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) 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.
       (15) Punitive damages.--The term ``punitive damages'' means 
     damages awarded, for the purpose of punishment or deterrence, 
     and

[[Page S13197]]

     not solely for compensatory purposes, against a health care 
     provider or health care institution. Punitive damages are 
     neither economic nor noneconomic damages.
       (16) 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.
       (17) State.--The term ``State'' means each of the several 
     States, the District of Columbia, the Commonwealth of Puerto 
     Rico, the Virgin Islands, Guam, American Samoa, 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. 10004. ENCOURAGING SPEEDY RESOLUTION OF CLAIMS.

       (a) In General.--Except as otherwise provided for in this 
     section, 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.
       (b) General Exception.--The time for the commencement of a 
     health care lawsuit shall not exceed 3 years after the date 
     of manifestation of injury unless the tolling of time was 
     delayed as a result of--
       (1) 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.
       (c) Minors.--An action by a minor shall be commenced within 
     3 years from the date of the alleged manifestation of injury 
     except that if such minor is under the full age of 6 years, 
     such action shall be commenced within 3 years of the 
     manifestation of injury, or prior to the eighth birthday of 
     the minor, 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 institution have committed fraud or collusion in 
     the failure to bring an action on behalf of the injured 
     minor.
       (d) Rule 11 Sanctions.--Whenever a Federal or State court 
     determines (whether by motion of the parties or whether on 
     the motion of the court) that there has been a violation of 
     Rule 11 of the Federal Rules of Civil Procedure (or a similar 
     violation of applicable State court rules) in a health care 
     liability action to which this Act applies, the court shall 
     impose upon the attorneys, law firms, or pro se litigants 
     that have violated Rule 11 or are responsible for the 
     violation, an appropriate sanction, which shall include an 
     order to pay the other party or parties for the reasonable 
     expenses incurred as a direct result of the filing of the 
     pleading, motion, or other paper that is the subject of the 
     violation, including a reasonable attorneys' fee. Such 
     sanction shall be sufficient to deter repetition of such 
     conduct or comparable conduct by others similarly situated, 
     and to compensate the party or parties injured by such 
     conduct.

     SEC. 10005. 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 the recovery by a claimant of the 
     full amount of the available economic damages, 
     notwithstanding the limitation contained in subsection (b).
       (b) Additional Noneconomic Damages.--
       (1) Health care providers.--In any health care lawsuit 
     where final judgment is rendered against a health care 
     provider, the amount of noneconomic damages recovered from 
     the provider, if otherwise available under applicable Federal 
     or State law, may be as much as $250,000, regardless of the 
     number of parties other than a health care institution 
     against whom the action is brought or the number of separate 
     claims or actions brought with respect to the same 
     occurrence.
       (2) Health care institutions.--
       (A) Single institution.--In any health care lawsuit where 
     final judgment is rendered against a single health care 
     institution, the amount of noneconomic damages recovered from 
     the institution, if otherwise available under applicable 
     Federal or State law, 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 occurrence.
       (B) Multiple institutions.--In any health care lawsuit 
     where final judgment is rendered against more than one health 
     care institution, the amount of noneconomic damages recovered 
     from each institution, if otherwise available under 
     applicable Federal or State law, 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 occurrence, except that the 
     total amount recovered from all such institutions in such 
     lawsuit shall not exceed $500,000.
       (c) No Discount of Award for Noneconomic Damages.--In any 
     health care lawsuit--
       (1) an award for future noneconomic damages shall not be 
     discounted to present value;
       (2) the jury shall not be informed about the maximum award 
     for noneconomic damages under subsection (b);
       (3) an award for noneconomic damages in excess of the 
     limitations provided for in subsection (b) 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; and
       (4) if separate awards are rendered for past and future 
     noneconomic damages and the combined awards exceed the 
     limitations described in subsection (b), 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. 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. 10006. MAXIMIZING PATIENT RECOVERY.

       (a) Court Supervision of Share of Damages Actually Paid to 
     Claimants.--
       (1) In general.--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.
       (2) Contingency fees.--
       (A) In general.--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.
       (B) Limitation.--The total of all contingent fees for 
     representing all claimants in a health care lawsuit shall not 
     exceed the following limits:
       (i) 40 percent of the first $50,000 recovered by the 
     claimant(s).
       (ii) 33\1/3\ percent of the next $50,000 recovered by the 
     claimant(s).
       (iii) 25 percent of the next $500,000 recovered by the 
     claimant(s).
       (iv) 15 percent of any amount by which the recovery by the 
     claimant(s) is in excess of $600,000.
       (b) Applicability.--
       (1) In general.--The limitations in subsection (a) shall 
     apply whether the recovery is by judgment, settlement, 
     mediation, arbitration, or any other form of alternative 
     dispute resolution.
       (2) Minors.--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.
       (c) Expert Witnesses.--
       (1) Requirement.--No individual shall be qualified to 
     testify as an expert witness concerning issues of negligence 
     in any health care lawsuit against a defendant unless such 
     individual--
       (A) except as required under paragraph (2), is a health 
     care professional who--
       (i) is appropriately credentialed or licensed in 1 or more 
     States to deliver health care services; and
       (ii) typically treats the diagnosis or condition or 
     provides the type of treatment under review; and
       (B) can demonstrate by competent evidence that, as a result 
     of training, education, knowledge, and experience in the 
     evaluation, diagnosis, and treatment of the disease or injury 
     which is the subject matter of the lawsuit against the 
     defendant, the individual was substantially familiar with 
     applicable standards of care and practice as they relate to 
     the act or omission which is the subject of the lawsuit on 
     the date of the incident.
       (2) Physician review.--In a health care lawsuit, if the 
     claim of the plaintiff involved treatment that is recommended 
     or provided by a physician (allopathic or osteopathic), an 
     individual shall not be qualified to be an expert witness 
     under this subsection with respect to issues of negligence 
     concerning such treatment unless such individual is a 
     physician.
       (3) Specialties and subspecialties.--With respect to a 
     lawsuit described in paragraph (1), a court shall not permit 
     an expert in one medical specialty or subspecialty to testify 
     against a defendant in another medical specialty or 
     subspecialty unless, in addition to a showing of substantial 
     familiarity in accordance with paragraph (1)(B), there is a 
     showing that the standards of care and practice in the two 
     specialty or subspecialty fields are similar.
       (4) Limitation.--The limitations in this subsection shall 
     not apply to expert witnesses testifying as to the degree or 
     permanency of medical or physical impairment.

     SEC. 10007. ADDITIONAL HEALTH BENEFITS.

       (a) In General.--The amount of any damages received by a 
     claimant in any health care lawsuit shall be reduced by the 
     court by the amount of any collateral source benefits to 
     which the claimant is entitled, less any insurance premiums 
     or other payments made by the claimant (or by the spouse, 
     parent, child, or legal guardian of the claimant) to obtain 
     or secure such benefits.
       (b) Preservation of Current Law.--Where a payor of 
     collateral source benefits

[[Page S13198]]

     has a right of recovery by reimbursement or subrogation and 
     such right is permitted under Federal or State law, 
     subsection (a) shall not apply.
       (c) Application of Provision.--This section shall apply to 
     any health care lawsuit that is settled or resolved by a fact 
     finder.

     SEC. 10008. PUNITIVE DAMAGES.

       (a) Punitive Damages Permitted.--
       (1) In general.--Punitive damages may, if otherwise 
     available under 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.
       (2) Filing of 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.
       (3) Separate proceeding.--At the request of any party in a 
     health care lawsuit, the trier of fact shall consider in a 
     separate proceeding--
       (A) whether punitive damages are to be awarded and the 
     amount of such award; and
       (B) 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.
       (4) Limitation where no compensatory damages are awarded.--
     In any health care lawsuit where no judgment for compensatory 
     damages is rendered against a person, no punitive damages may 
     be awarded with respect to the claim in such lawsuit against 
     such person.
       (b) Determining Amount of Punitive Damages.--
       (1) Factors considered.--In determining the amount of 
     punitive damages under this section, 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; and
       (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 awarded 
     in a health care lawsuit may not exceed an amount equal to 
     two times the amount of economic damages awarded in the 
     lawsuit or $250,000, whichever is greater. The jury shall not 
     be informed of the limitation under the preceding sentence.
       (c) Liability of Health Care Providers.--
       (1) In general.--A health care provider who prescribes, or 
     who dispenses pursuant to a prescription, a drug, biological 
     product, or medical device approved by the Food and Drug 
     Administration, for an approved indication of the drug, 
     biological product, or medical device, shall not be named as 
     a party to a product liability lawsuit invoking such drug, 
     biological product, or medical device and shall not be liable 
     to a claimant in a class action lawsuit against the 
     manufacturer, distributor, or product seller of such drug, 
     biological product, or medical device.
       (2) Medical product.--The term ``medical product'' means a 
     drug or device intended for humans. The terms ``drug'' and 
     ``device'' 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), respectively, including any component or 
     raw material used therein, but excluding health care 
     services.

     SEC. 10009. 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 accordance with 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 
     effective date of this title.

     SEC. 10010. EFFECT ON OTHER LAWS.

       (a) General Vaccine Injury.--
       (1) In general.--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) this title shall not affect the application of the rule 
     of law to such an action; and
       (B) any rule of law prescribed by this title in conflict 
     with a rule of law of such title XXI shall not apply to such 
     action.
       (2) Exception.--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 this title or otherwise 
     applicable law (as determined under this title) will apply to 
     such aspect of such action.
       (b) Smallpox Vaccine Injury.--
       (1) In general.--To the extent that part C of title II of 
     the Public Health Service Act establishes a Federal rule of 
     law applicable to a civil action brought for a smallpox 
     vaccine-related injury or death--
       (A) this title shall not affect the application of the rule 
     of law to such an action; and
       (B) any rule of law prescribed by this title in conflict 
     with a rule of law of such part C shall not apply to such 
     action.
       (2) Exception.--If there is an aspect of a civil action 
     brought for a smallpox vaccine-related injury or death to 
     which a Federal rule of law under part C of title II of the 
     Public Health Service Act does not apply, then this title or 
     otherwise applicable law (as determined under this title) 
     will apply to such aspect of such action.
       (c) Other Federal Law.--Except as provided in this section, 
     nothing in this title shall be deemed to affect any defense 
     available, or any limitation on liability that applies to, a 
     defendant in a health care lawsuit or action under any other 
     provision of Federal law.

     SEC. 10011. STATE FLEXIBILITY AND PROTECTION OF STATES' 
                   RIGHTS.

       (a) Health Care Lawsuits.--The provisions governing health 
     care lawsuits set forth in this title shall 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 this title; or
       (2) prohibits the introduction of evidence regarding 
     collateral source benefits.
       (b) Preemption of Certain State Laws.--No provision of this 
     title shall be construed to preempt any State law (whether 
     effective before, on, or after the date of the enactment of 
     this Act) 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 10005(a).
       (c) Protection of State's Rights and Other Laws.--
       (1) In general.--Any issue that is not governed by a 
     provision of law established by or under this title 
     (including the State standards of negligence) shall be 
     governed by otherwise applicable Federal or State law.
       (2) Rule of construction.--Nothing in this title shall be 
     construed to--
       (A) preempt or supersede any Federal or State law that 
     imposes greater procedural or substantive protections (such 
     as a shorter statute of limitations) for a health care 
     provider or health care institution from liability, loss, or 
     damages than those provided by this title;
       (B) preempt or supercede any State law that permits and 
     provides for the enforcement of any arbitration agreement 
     related to a health care liability claim whether enacted 
     prior to or after the date of enactment of this title;
       (C) create a cause of action that is not otherwise 
     available under Federal or State law; or
       (D) affect the scope of preemption of any other Federal 
     law.

     SEC. 10012. 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 enactment of this title shall be governed by the 
     applicable statute of limitations provisions in effect at the 
     time the injury occurred.
                                 ______
                                 
  SA 3211. Ms. SNOWE submitted an amendment intended to be proposed to 
amendment SA 2786 proposed by Mr. Reid (for himself, Mr. Baucus, Mr. 
Dodd, and Mr. Harkin) to the bill H.R. 3590, to amend the Internal 
Revenue Code of 1986 to modify the first-time homebuyers credit in the 
case of members of the Armed Forces and certain other Federal 
employees, and for other purposes; which was ordered to lie on the 
table; as follows:

       On page 136, between lines 3 and 4, insert the following:
       (6) Restrictions on enrollment.--The following restrictions 
     on enrollment in a qualified health plan offered through an 
     Exchange, during any enrollment period described in paragraph 
     (5), shall apply:

[[Page S13199]]

       (A) During any enrollment period or upon any qualifying 
     event (described in section 603 of the Employee Retirement 
     Income Security Act of 1974), an individual who, in the 
     previous year was enrolled in a qualified health plan through 
     an Exchange, may not enroll in a qualified health plan 
     offering a level of coverage (as defined in section 
     1302(d)(1)) that is more than one level greater than the 
     level at which the individual received coverage in the 
     previous year.
       (B) If an individual misses the first enrollment period for 
     which such individual is eligible to enroll in a qualified 
     health plan offered through an Exchange, if such individual 
     enrolls in a health plan through an Exchange during the next 
     enrollment period, for a period of not more than 90 days 
     after first enrolling in such plan, such individual shall not 
     receive coverage for elective services that are not of urgent 
     medical necessity, except where the denial of services could 
     pose significant risk to the life of such individual, or 
     could be reasonably assumed to exacerbate an underlying 
     condition. At no time after an individual described in the 
     preceding sentence enrolls in a qualified health plan offered 
     through an Exchange may such individual be denied coverage 
     for preventive health services (as described in section 2713 
     of the Public Health Service Act, as added by section 1001) 
     or the treatment of chronic conditions that otherwise are 
     available under the health plan.
                                 ______
                                 
  SA 3212. Ms. SNOWE submitted an amendment intended to be proposed to 
amendment SA 2786 proposed by Mr. Reid (for himself, Mr. Baucus, Mr. 
Dodd, and Mr. Harkin) to the bill H.R. 3590, to amend the Internal 
Revenue Code of 1986 to modify the first-time homebuyers credit in the 
case of members of the Armed Forces and certain other Federal 
employees, and for other purposes; which was ordered to lie on the 
table; as follows:

       On page 113, line 18, strike ``may'' and insert ``shall''.
                                 ______
                                 
  SA 3213. Ms. SNOWE submitted an amendment intended to be proposed to 
amendment SA 2786 proposed by Mr. Reid (for himself, Mr. Baucus, Mr. 
Dodd, and Mr. Harkin) to the bill H.R. 3590, to amend the Internal 
Revenue Code of 1986 to modify the first-time homebuyers credit in the 
case of members of the Armed Forces and certain other Federal 
employees, and for other purposes; which was ordered to lie on the 
table; as follows:

       On page 436, between lines 14 and 15, insert the following:

     SEC. 2008. APPLICATION OF MEDICAID PROMPT PAY REQUIREMENTS TO 
                   NURSING FACILITIES AND HOSPITALS.

       Section 1902(a)(37) of the Social Security Act (42 U.S.C. 
     1396a(a)(37)) is amended by striking ``and (B)'' and 
     inserting ``(B) insofar as nursing facilities or hospitals 
     are paid under the State plan on the basis of submission of 
     claims, ensure that 90 percent of claims for payment (for 
     which no further written information or substantiation is 
     required in order to make payment) made for services covered 
     under the plan and furnished by all such facilities or 
     hospitals that are paid on that basis are paid within 30 days 
     of the date of receipt of such claims and that 99 percent of 
     such claims are paid within 90 days of the date of receipt of 
     such claims, and (C)''.
                                 ______
                                 
  SA 3214. Ms. SNOWE submitted an amendment intended to be proposed to 
amendment SA 2786 proposed by Mr. Reid (for himself, Mr. Baucus, Mr. 
Dodd, and Mr. Harkin) to the bill H.R. 3590, to amend the Internal 
Revenue Code of 1986 to modify the first-time homebuyers credit in the 
case of members of the Armed Forces and certain other Federal 
employees, and for other purposes; which was ordered to lie on the 
table; as follows:

       On page 34, line 16, insert before the semicolon the 
     following: ``operated by a non-profit consumer-based 
     community group or groups''.
       On page 35, strike lines 3 through 6, and insert the 
     following:
       ``(2) Criteria.--The Secretary in collaboration with the 
     Administrator of the Center for Medicaid & Medicare Services 
     shall develop standards that must be met by all entities that 
     provide consumer assistance, including standards relating 
     to--
       ``(A) adequate capacity and training to respond to consumer 
     concerns;
       ``(B) a review process for monitoring accuracy of 
     responses;
       ``(C) cultural and linguistic competency to meet the needs 
     of the community; and
       ``(D) documented experience working with the target 
     population.''.
       On page 36, line 6, insert before the period the following: 
     ``, including regular and timely accounting of types of 
     problems and inquiries; income, zip code, gender, race or 
     ethnicity and language spoken by persons served; enrollment 
     and outreach activities provided; and implementation issues 
     encountered or identified, if any''.
       On page 36, line 15, strike ``$30,000,000'' and insert 
     ``$100,000,000''.
                                 ______
                                 
  SA 3215. Mr. LIEBERMAN (for himself, Ms. Collins, Mr. Specter, and 
Mr. Whitehouse) submitted an amendment intended to be proposed to 
amendment SA 2786 proposed by Mr. Reid (for himself, Mr. Baucus, Mr. 
Dodd, and Mr. Harkin) to the bill H.R. 3590, to amend the Internal 
Revenue Code of 1986 to modify the first-time homebuyers credit in the 
case of members of the Armed Forces and certain other Federal 
employees, and for other purposes; which was ordered to lie on the 
table; as follows:

       On page 1134, between lines 3 and 4, insert the following:

 Subtitle G--Additional Health Care Quality and Efficiency Improvements

     SEC. 3601. REPORT ON DEMONSTRATION AND PILOT PROGRAMS.

       (a) Report.--Not later than 12 months after the date of 
     enactment of this Act, and every 3 years thereafter, the 
     Secretary of Health and Human Services shall submit to the 
     appropriate committees of Congress a report that describes 
     all pilot programs and demonstration projects that the 
     Secretary has authority to carry out (regardless of whether 
     such programs or projects are actually implemented), as 
     authorized by law, during the period for which the report is 
     submitted.
       (b) Requirements.--A report under subsection (a) shall--
       (1) list all pilot programs or demonstration projects 
     involved and indicate whether each program or project is--
       (A) not yet being implemented;
       (B) currently being implemented; or
       (C) complete and awaiting further determinations; and
       (2) with respect to programs or projects described in 
     subparagraphs (A) or (B) of paragraph (1), include the 
     recommendations of the Secretary as to whether such programs 
     or projects are necessary.
       (c) Actions Based on Recommendations.--Based on the 
     recommendations of the Secretary under subsection (b)(2)--
       (1) if the Secretary determines that a program or project 
     is necessary, the Secretary shall submit to Congress a 
     strategic plan for the implementation of the program or 
     project and may transfer such program or project into the 
     jurisdiction of the Innovation Center of the Centers for 
     Medicare & Medicaid Services; or
       (2) if the Secretary determines that a program or project 
     is unnecessary, the Secretary may terminate the program.
       (d) Action by Congress.--Congress may continue in effect 
     any program or project terminated by the Secretary under 
     subsection (c)(2) through the enactment of a Concurrent 
     Resolution expressing the sense of Congress to continue the 
     program or project involved.

     SEC. 3602. AVAILABILITY OF DATA ON DENIAL OF CLAIMS.

       Section 2715(b)(3) of the Public Health Service Act, as 
     added by section 1001, is amended--
       (1) in subparagraph (H), by striking ``and'' at the end;
       (2) by redesignating subparagraph (I) as subparagraph (J): 
     and
       (3) by inserting after subparagraph (H) the following new 
     subparagraph:
       ``(I) a statement relating to claims procedures including 
     the percentage of claims that are annually denied by the plan 
     or coverage and the percentage of such denials that are 
     overturned on appeal; and''.

     SEC. 3603. ACCELERATION AND INCREASE OF THE PAYMENT 
                   ADJUSTMENT FOR CONDITIONS ACQUIRED IN 
                   HOSPITALS.

       Section 1886(p) of the Social Security Act (42 U.S.C. 
     1395(p)), as added by section 3008(a), is amended--
       (1) in paragraph (1)--
       (A) by striking ``2015'' and inserting ``2013''; and
       (B) by striking ``99 percent'' and inserting ``98 
     percent''; and
       (2) in paragraph (5), by striking ``2015'' and inserting 
     ``2013''.

     SEC. 3604. IMPROVEMENTS TO NATIONAL PILOT PROGRAM ON PAYMENT 
                   BUNDLING.

       Section 1866D of the Social Security Act, as added by 
     section 3023, is amended--
       (1) in subsection (a)(3), by striking ``January 1, 2013'' 
     and inserting ``January 1, 2012''; and
       (2) by amending subsection (g) to read as follows:
       ``(g) Authority to Expand Implementation.--
       ``(1) In general.--Taking into account the evaluation under 
     subparagraph (e), the Secretary may, through rulemaking, 
     expand (including implementation nationwide on a voluntary 
     basis) the duration and the scope of the pilot program, to 
     the extent determined appropriate by the Secretary, if--
       ``(A) the Secretary determines that such expansion is 
     expected to--
       ``(i) reduce spending under this title without reducing the 
     quality of care; or
       ``(ii) improve the quality of care and reduce spending; and
       ``(B) the Chief Actuary of the Centers for Medicare & 
     Medicaid Services certifies that such expansion would reduce 
     program spending under this title.
       ``(2) Implementation plan.--In the case where the Secretary 
     does not exercise the authority under paragraph (1) by 
     January 1, 2015, not later than such date, the Secretary 
     shall submit a plan for the implementation of an expansion of 
     the pilot program if the

[[Page S13200]]

     Secretary determines that such expansion will result in 
     improving or not reducing the quality of patient care and 
     reducing spending under this title.''.

     SEC. 3605. PUBLIC REPORTING OF PERFORMANCE INFORMATION.

       (a) In General.--
       (1) Development.--Not later than January 1, 2011, the 
     Secretary shall develop a Physician Compare Internet website 
     with information on physicians enrolled in the Medicare 
     program under section 1866(j) of the Social Security Act (42 
     U.S.C. 1395cc(j)) and other eligible professionals who 
     participate in the Physician Quality Reporting Initiative 
     under section 1848 of such Act (42 U.S.C. 1395w-4).
       (2) Plan.--Not later than January 1, 2013, and with respect 
     to reporting periods that begin no earlier than January 1, 
     2012, the Secretary shall also implement a plan for making 
     publicly available through Physician Compare, consistent with 
     subsection (c), information on physician performance that 
     provides comparable information for the public on quality and 
     patient experience measures with respect to physicians 
     enrolled in the Medicare program under such section 1866(j). 
     To the extent scientifically sound measures that are 
     developed consistent with the requirements of this section 
     are available, such information, to the extent practicable, 
     shall include--
       (A) measures collected under the Physician Quality 
     Reporting Initiative;
       (B) an assessment of patient health outcomes and the 
     functional status of patients;
       (C) an assessment of the continuity and coordination of 
     care and care transitions, including episodes of care and 
     risk-adjusted resource use;
       (D) an assessment of efficiency;
       (E) an assessment of patient experience and patient, 
     caregiver, and family engagement;
       (F) an assessment of the safety, effectiveness, and 
     timeliness of care; and
       (G) other information as determined appropriate by the 
     Secretary.
       (b) Other Required Considerations.--In developing and 
     implementing the plan described in subsection (a)(2), the 
     Secretary shall, to the extent practicable, include--
       (1) processes to assure that data made public, either by 
     the Centers for Medicare & Medicaid Services or by other 
     entities, is statistically valid and reliable, including risk 
     adjustment mechanisms used by the Secretary;
       (2) processes by which a physician or other eligible 
     professional whose performance on measures is being publicly 
     reported has a reasonable opportunity, as determined by the 
     Secretary, to review his or her individual results before 
     they are made public;
       (3) processes by the Secretary to assure that the 
     implementation of the plan and the data made available on 
     Physician Compare provide a robust and accurate portrayal of 
     a physician's performance;
       (4) data that reflects the care provided to all patients 
     seen by physicians, under both the Medicare program and, to 
     the extent practicable, other payers, to the extent such 
     information would provide a more accurate portrayal of 
     physician performance;
       (5) processes to ensure appropriate attribution of care 
     when multiple physicians and other providers are involved in 
     the care of a patient;
       (6) processes to ensure timely statistical performance 
     feedback is provided to physicians concerning the data 
     reported under any program subject to public reporting under 
     this section; and
       (7) implementation of computer and data systems of the 
     Centers for Medicare & Medicaid Services that support valid, 
     reliable, and accurate public reporting activities authorized 
     under this section.
       (c) Ensuring Patient Privacy.--The Secretary shall ensure 
     that information on physician performance and patient 
     experience is not disclosed under this section in a manner 
     that violates sections 552 or 552a of title 5, United States 
     Code, with regard to the privacy of individually identifiable 
     health information.
       (d) Feedback From Multi-Stakeholder Groups.--The Secretary 
     shall take into consideration input provided by multi-
     stakeholder groups, consistent with sections 1890(b)(7) and 
     1890A of the Social Security Act, as added by section 3014 of 
     this Act, in selecting quality measures for use under this 
     section.
       (e) Consideration of Transition to Value-Based 
     Purchasing.--In developing the plan under this subsection 
     (a)(2), the Secretary shall, as the Secretary determines 
     appropriate, consider the plan to transition to a value-based 
     purchasing program for physicians and other practitioners 
     developed under section 131 of the Medicare Improvements for 
     Patients and Providers Act of 2008 (Public Law 110-275).
       (f) Report to Congress.--Not later than January 1, 2015, 
     the Secretary shall submit to Congress a report on the 
     Physician Compare Internet website developed under subsection 
     (a)(1). Such report shall include information on the efforts 
     of and plans made by the Secretary to collect and publish 
     data on physician quality and efficiency and on patient 
     experience of care in support of value-based purchasing and 
     consumer choice, together with recommendations for such 
     legislation and administrative action as the Secretary 
     determines appropriate.
       (g) Expansion.--At any time before the date on which the 
     report is submitted under subsection (f), the Secretary may 
     expand (including expansion to other providers of services 
     and suppliers under title XVIII of the Social Security Act) 
     the information made available on such website.
       (h) Financial Incentives to Encourage Consumers to Choose 
     High Quality Providers.--The Secretary may establish a 
     demonstration program, not later than January 1, 2019, to 
     provide financial incentives to Medicare beneficiaries who 
     are furnished services by high quality physicians, as 
     determined by the Secretary based on factors in subparagraphs 
     (A) through (G) of subsection (a)(2). In no case may Medicare 
     beneficiaries be required to pay increased premiums or cost 
     sharing or be subject to a reduction in benefits under title 
     XVIII of the Social Security Act as a result of such 
     demonstration program. The Secretary shall ensure that any 
     such demonstration program does not disadvantage those 
     beneficiaries without reasonable access to high performing 
     physicians or create financial inequities under such title.
       (i) Definitions.--In this section:
       (1) Eligible professional.--The term ``eligible 
     professional'' has the meaning given that term for purposes 
     of the Physician Quality Reporting Initiative under section 
     1848 of the Social Security Act (42 U.S.C. 1395w-4)
       (2) Physician.--The term ``physician'' has the meaning 
     given that term in section 1861(r) of such Act (42 U.S.C. 
     1395x(r)).
       (3) Physician compare.--The term ``Physician Compare'' 
     means the Internet website developed under subsection (a)(1).
       (4) Secretary.--The term ``Secretary'' means the Secretary 
     of Health and Human Services.
                                 ______
                                 
  SA 3216. Mr. NELSON of Florida submitted an amendment intended to be 
proposed to amendment SA 2786 proposed by Mr. Reid (for himself, Mr. 
Baucus, Mr. Dodd, and Mr. Harkin) to the bill H.R. 3590, to amend the 
Internal Revenue Code of 1986 to modify the first-time homebuyers 
credit in the case of members of the Armed Forces and certain other 
Federal employees, and for other purposes; which was ordered to lie on 
the table; as follows:

       On page 2046, after line 24, add the following:

     SEC. ____. INCREASE IN MEDICAL DEVICE RECEIPTS EXEMPT FROM 
                   ANNUAL FEE.

       The table contained in paragraph (2) of section 9009(b) is 
     amended--
       (1) by striking ``$5,000,000'' both places it appears and 
     inserting ``$100,000,000'', and
       (2) by striking ``$25,000,000'' both places it appears and 
     inserting ``$150,000,000''.
                                 ______
                                 
  SA 3217. Mrs. FEINSTEIN submitted an amendment intended to be 
proposed to amendment SA 2786 proposed by Mr. Reid (for himself, Mr. 
Baucus, Mr. Dodd, and Mr. Harkin) to the bill H.R. 3590, to amend the 
Internal Revenue Code of 1986 to modify the first-time homebuyers 
credit in the case of members of the Armed Forces and certain other 
Federal employees, and for other purposes; which was ordered to lie on 
the table; as follows:

       On page 131, between lines 2 and 3, insert the following:
       (3) Presumption for existing small employer exchanges.--
       (A) In general.--Notwithstanding the requirements of 
     subsection (d)(1), or other provisions of this Act, in the 
     case of an entity that--
       (i) was approved by the appropriate agency of a State to 
     operate as the functional equivalent of a small employer 
     health benefit exchange under State law;
       (ii) was fully operational as of January 1, 2010; and
       (iii) had enrolled a minimum of 50,000 covered lives 
     through small business employers as of January 1, 2010, and 
     offers and administers coverage on behalf of a minimum of 3 
     unaffiliated health plans;

     the Secretary shall deem such exchange to be a SHOP Exchange 
     for purposes of this title, unless the Secretary determines, 
     after completion of the process established under 
     subparagraph (B), that the exchange does not comply with the 
     standards for SHOP Exchanges under this section.
       (B) Process.--The Secretary shall establish a process to 
     work with an entity described in subparagraph (A) to assist 
     the entity in achieving compliance with the requirements and 
     standards applicable to SHOP Exchanges under this title as 
     soon as practicable, but not later than January 1, 2014, 
     including the requirements of a SHOP Exchange to offer all 
     applicable private and public sector health care coverage 
     products and programs described in this title, including, 
     without limitation, the enrollment of small employers in all 
     such products and programs, and to service the premium 
     assistance and cost-sharing programs available under this 
     title to eligible small employers and their employees.
                                 ______
                                 
  SA 3218. Mr. DORGAN submitted an amendment intended to be proposed to 
amendment SA 2786 proposed by Mr. Reid (for himself, Mr. Baucus, Mr. 
Dodd, and Mr. Harkin) to the bill H.R. 3590, to amend the Internal 
Revenue Code of 1986 to modify the first-time

[[Page S13201]]

homebuyers credit in the case of members of the Armed Forces and 
certain other Federal employees, and for other purposes; which was 
ordered to lie on the table; as follows:

       On page 99, between lines 4 and 5, insert the following:
       (e) Application of Lifetime Aggregate Limits.--
       (1) In general.--Notwithstanding any other provision of 
     this section, the provisions of section 2711 of the Public 
     Health Service Act (as added by section 1001) that relate to 
     lifetime limits shall apply to grandfathered health plans 
     (including group health plans and individual health insurance 
     coverage), except as provided for in paragraph (2).
       (2) Phase-out.--A grandfathered health plan--
       (A) may not apply a lifetime limit that is less than 
     $5,000,000 during the first two plan years beginning after 
     the date of enactment of this Act;
       (B) may not apply a lifetime limit that is less than 
     $10,000,000 during the third and fourth plan years beginning 
     after the date of enactment of this Act; and
       (C) shall not apply any lifetime limit for plans years 
     beginning on or after January 1, 2014.

                          ____________________