[Congressional Record Volume 155, Number 191 (Wednesday, December 16, 2009)]
[Senate]
[Pages S13326-S13340]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           TEXT OF AMENDMENTS

  SA 3242. Mr. CRAPO 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 1053, between lines 2 and 3, insert the following:

     SEC. 3403A. IMPROVEMENTS TO THE INDEPENDENT MEDICARE ADVISORY 
                   BOARD.

       Section 1899A of the Social Security Act, as added by 
     section 3403, is amended--
       (1) in subsection (c)--
       (A) in paragraph (1)--
       (i) by redesignating subparagraph (B) as subparagraph (C); 
     and
       (ii) by inserting after subparagraph (A) the following new 
     subparagraph:
       ``(B) Promulgation of regulations to provide foundation for 
     board proposals.--
       ``(i) In general.--Before developing any proposal under 
     this section, the Board, after consultation with the 
     Secretary, shall promulgate regulations through which the 
     Board interprets the provisions of this section that concern 
     the duties of the Board in order to provide a substantive and 
     procedural foundation for carrying out such duties. Such 
     regulations shall be promulgated in accordance with the 
     procedures under section 553 of title 5, United States Code, 
     that relate to substantive rules.
       ``(ii) Rule of construction.--Clause (i) may not be 
     construed as requiring that proposals under this section be 
     promulgated in accordance with the rulemaking procedures 
     referred to in clause (i).'';
       (B) in paragraph (2), by adding at the end the following 
     new subparagraphs:
       ``(G) Consultation with independent advisory committee.--
       ``(i) In general.--Not later than 60 days after the date of 
     the enactment of the Patient Protection and Affordable Care 
     Act, the Secretary shall establish an advisory committee to 
     review, in accordance with procedures established in the 
     Federal Advisory Committee Act, each proposal to be submitted 
     to Congress under this section.
       ``(ii) Composition.--The advisory committee under clause 
     (i) (referred to in this subparagraph as the `Independent 
     Committee') shall be composed of not more than 15 members who 
     are medical and scientific experts appointed from among 
     individuals who are not officers or employees of the Federal 
     Government.
       ``(iii) Review and report.--The Board shall submit a draft 
     copy of each proposal to be submitted to the President under 
     this section to the Independent Committee for its review. The 
     Board shall submit such draft copy by not later than 
     September 1 of the year preceding the year for which the 
     proposal is to be submitted. Not later than November 1 of 
     such year, the Independent Committee shall submit a report to 
     Congress and the Board on the results of such review, 
     including matters reviewed pursuant to the succeeding 
     provisions of this subparagraph.
       ``(iv) Clinical appropriateness of payment restrictions and 
     coverage restrictions.--The review of the Independent 
     Committee of a recommendation in a proposal under this 
     section shall, with respect to any changes in items or 
     services under this title, include evaluating the differences 
     in treatment guidelines and variables of treatment costs for 
     items and services under this title that are subject to a 
     reduction in payment or restriction in coverage pursuant to 
     the recommendation. The purpose of such evaluation shall be 
     to ensure that the recommendation applies only to those items 
     and services for which such comparisons may be made in a 
     clinically appropriate manner.
       ``(v) Substantial evidence regarding certain 
     recommendations.--With respect to a recommendation in a 
     proposal of the Board that reduces payment or restricts 
     coverage for items and services under this title, the 
     Independent Committee shall determine whether the 
     recommendation is supported by substantial evidence.
       ``(vi) Special populations; health disparities.--In 
     reviewing a recommendation in a proposal under this section, 
     the Independent Committee shall evaluate the effect on 
     special populations and whether the recommendation is 
     consistent with Federal policies to reduce health 
     disparities.
       ``(vii) Public meeting to present and discuss findings.--
     Before issuing a report under clause (iii), the Independent 
     Committee shall hold a public meeting at which it presents 
     the findings of its review under such clause and seeks 
     comments from individuals attending the meeting.
       ``(H) Publication of initial proposal in federal 
     register.--
       ``(i) In general.--Not later than October 1 preceding the 
     proposal year involved, the Board shall publish in the 
     Federal Register an initial proposal of the Board under this 
     section and shall seek comments from the public on the 
     proposal. The final proposal shall be published in the 
     Federal Register on the same date as the date on which such 
     proposal is submitted to the President under paragraph (3)(A) 
     (or under paragraph (5), as the case may be).
       ``(ii) Limitation on judicial review.--The publication 
     under clause (i) of a final proposal of the Board does not 
     constitute final agency action for purposes of section 704 of 
     title 5, United States Code.''; and
       (C) in paragraph (3)(B), by striking clause (ii) and 
     inserting the following new clause:

[[Page S13327]]

       ``(ii) taking into account comments received from the 
     public under paragraph (2)(H)(i), an explanation of each 
     recommendation contained in the proposal and the reasons for 
     including such recommendation, and a statement of whether and 
     to what extent the Board considered it feasible--

       ``(I) to protect and improve Medicare beneficiaries' access 
     to necessary and evidence-based items and services, including 
     in rural and frontier areas; and
       ``(II) to otherwise comply with the requirements of 
     paragraph (2)(B); and''; and

       (2) in subsection (e), by striking paragraph (5) and 
     inserting the following new paragraph:
       ``(5) Limitation on review.--
       ``(A) In general.--There shall be no administrative or 
     judicial review under section 1869, section 1878, or 
     otherwise of the implementation by the Secretary under this 
     subsection of the recommendations contained in a proposal, 
     except as provided in subparagraph (B).
       ``(B) Judicial review of scope of agency authority; 
     compliance with procedural safeguards.--
       ``(i) In general.--An aggrieved beneficiary or other party 
     may, in accordance with the procedures that apply under 
     section 1869(f)(3), seek review by a court of competent 
     jurisdiction of the implementation by the Secretary of any 
     recommendation in a proposal of the Board if the moving party 
     alleges that the only issue of law is the constitutionality 
     of a recommendation, or one or more issues described in 
     clause (ii). For purposes of this subparagraph, a regulation, 
     determination, or ruling by the Secretary under such a 
     recommendation is final agency action within the meaning of 
     section 704 of title 5, United States Code.
       ``(ii) Relevant issues; procedural safeguards.--For 
     purposes of clause (i), the court shall hold unlawful and set 
     aside a regulation, determination, or ruling by the Secretary 
     under a recommendation in a proposal of the Board if the 
     court finds that--

       ``(I) the regulation, determination, or ruling exceeds the 
     scope of the recommendation;
       ``(II) the Board failed to promulgate regulations in 
     accordance with subsection (c)(1)(B) (relating to a 
     substantive and procedural foundation for carrying out the 
     duties of the Board);
       ``(III) the Board failed to comply with subsection 
     (c)(2)(A)(ii) (relating to prohibitions against rationing 
     health care; increasing beneficiary cost-sharing, such as 
     deductibles, coinsurance, and copayments; or otherwise 
     restricting benefits or modifying eligibility criteria);
       ``(IV) the Board failed to comply with subparagraph (D), 
     (E), (G), or (H) of subsection (c)(2) (relating to review by 
     the Medicare Payment Advisory Board, review by the Secretary, 
     review by an independent advisory panel of experts, and 
     publishing initial and final proposals of the Board in the 
     Federal Register, respectively); or
       ``(V) the Board failed to comply with subsection 
     (c)(3)(B)(ii) (relating to providing explanations of 
     recommendations, providing statements of whether certain 
     duties are feasible, and taking into account public 
     comments).

       ``(iii) Substantial evidence regarding certain 
     recommendations.--With respect to a recommendation in a 
     proposal of the Board under this section that reduces payment 
     or restricts coverage for items and services under this 
     title:

       ``(I) The review by a court under clause (i) of the 
     implementation by the Secretary of the recommendation shall 
     include a review of the basis of the recommendation.
       ``(II) The court shall hold unlawful and set aside the 
     recommendation, and any regulation, determination, or ruling 
     by the Secretary under the recommendation, if the court finds 
     that the recommendation is unsupported by substantial 
     evidence within the meaning of section 706 of title 5, United 
     States Code.''.

                                 ______
                                 
  SA 3243. 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 1790, between lines 9 and 10, insert the following:

     SEC. 6508. REQUIREMENT FOR ALL MEDICAID AND CHIP APPLICANTS 
                   TO PRESENT AN IDENTIFICATION DOCUMENT.

       (a) In General.--Section 1902 of the Social Security Act 
     (42 U.S.C. 1396a), as amended by section 211(a)(1)(A)(i) of 
     Public Law 111-3 and section 2303(a)(2) of this Act, is 
     amended--
       (1) in subsection (a)(46), --
       (A) in subparagraph (A), by striking ``and'' after the 
     semicolon;
       (B) in subparagraph (B), by adding ``and'' after the 
     semicolon; and
       (C) by adding at the end the following:
       ``(C) provide that each applicant for medical assistance 
     (or the parent or guardian of an applicant who has not 
     attained age 18), regardless of whether the applicant is 
     described in paragraph (2) of section 1903(x), shall present 
     an identification document described in subsection (jj) when 
     applying for medical assistance (and shall be provided with 
     at least the reasonable opportunity to present such 
     identification as is provided under clauses (i) and (ii) of 
     section 1137(d)(4)(A) to an individual for the submittal to 
     the State of evidence indicating a satisfactory immigration 
     status;''; and
       (2) by adding at the end the following:
       ``(jj) For purposes of subsection (a)(46)(C), a document 
     described in this subsection is--
       ``(1) in the case of an individual who is a national of the 
     United States--
       ``(A) a United States passport, or passport card issued 
     pursuant to the Secretary of State's authority under the 
     first section of the Act of July 3, 1926 (44 Stat. 887, 
     Chapter 772; 22 U.S.C. 211a); or
       ``(B) a driver's license or identity card issued by a 
     State, the Commonwealth of the Northern Mariana Islands, or 
     an outlying possession of the United States that--
       ``(i) contains a photograph of the individual and other 
     identifying information, including the individual's name, 
     date of birth, gender, and address; and
       ``(ii) contains security features to make the license or 
     card resistant to tampering, counterfeiting, and fraudulent 
     use;
       ``(2) in the case of an alien lawfully admitted for 
     permanent residence in the United States, a permanent 
     resident card, as specified by the Secretary of Homeland 
     Security that meets the requirements of clauses (i) and (ii) 
     of paragraph (1)(B);
       ``(3) in the case of an alien who is authorized to be 
     employed in the United States, an employment authorization 
     card, as specified by the Secretary of Homeland Security that 
     meets the requirements of clauses (i) and (ii) of paragraph 
     (1)(B); or
       ``(4) in the case of an individual who is unable to obtain 
     a document described in paragraph (1), (2), or (3), a 
     document designated by the Secretary of Homeland Security 
     that meets the requirements of clauses (i) and (ii) of 
     paragraph (1)(B).''.
       (b) Application to CHIP.--Section 2105(c)(9)(A) (42 U.S.C. 
     1397ee(c)(9)(A)) is amended by striking ``section 
     1902(a)(46)(B)'' and inserting ``subparagraphs (B) and (C) of 
     subsection (a)(46) and subsection (jj) of section 1902''.
                                 ______
                                 
  SA 3244. 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:

       At the appropriate place, insert the following:

          Subtitle _--Improved Patient Access and Medical Care

                  PART I--EPSDT BENEFITS FOR CHILDREN

     SEC. _01. EPSDT BENEFITS FOR CHILDREN.

       Section 1902(gg) of the Social Security Act, as added by 
     section 2001(b)(2) of this Act, is amended by redesignating 
     paragraph (4) as paragraph (5) and inserting after paragraph 
     (3) the following:
       ``(4) States certifying essential benefits and cost-sharing 
     protections for children in families with income up to 300 
     percent of the poverty line.--The requirements under 
     paragraphs (1) and (2) and section 2105(d)(3)(A) shall not 
     apply to a State with respect to individuals whose income 
     exceeds 133 percent of the poverty line (as defined in 
     section 2110(c)(5)) applicable to a family of the size 
     involved for any fiscal year or portion of a fiscal year that 
     occurs on or after the date on which the State certifies to 
     the Secretary that--
       ``(A) coverage available through an Exchange established by 
     the State under section 1311 of the Patient Protection and 
     Affordable Care Act for children who reside in the State, are 
     under 19 years of age, and are in families with income that 
     does not exceed 300 percent of the poverty line (as so 
     defined), is at least the same as the level of benefits and 
     cost-sharing under the State child health plan under title 
     XXI (whether implemented under that title, this title, or 
     both); and
       ``(B) the State Medicaid agency and qualified health plans 
     offered through such an Exchange have established adequate 
     procedures, with respect to such children, to ensure access 
     to, and the coordinated provision of--
       ``(i) services described in section 1905(a)(4)(B) (relating 
     to early and periodic screening, diagnostic, and treatment 
     services defined in section 1905(r)) and provided in 
     accordance with the requirements of section 1902(a)(43); and
       ``(ii) cost-sharing protections consistent with section 
     2103(e) of the Social Security Act.

     A State may comply with the requirements of subparagraph (B) 
     by providing the services and cost-sharing protections 
     required under that subparagraph directly under the State 
     plan under title XIX or title XXI of the Social Security, or 
     under arrangements entered into with qualified health plans 
     offered through such an Exchange. Expenditures by the State 
     to provide such services and cost-sharing protections shall 
     be treated as medical assistance for purposes of section 
     1903(a) and, notwithstanding section 1905(b), the enhanced 
     FMAP under section 2105(b) shall

[[Page S13328]]

     apply to such expenditures. In no event shall a State receive 
     a payment under section 1903(a) for any such expenditures 
     made prior to the date on which an Exchange is established by 
     the State and operating under section 1311 of the Patient 
     Protection and Affordable Care Act.''.

                PART II--MEDICAL CARE ACCESS PROTECTION

     SEC. _11. SHORT TITLE OF PART.

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

     SEC. _12. 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 part 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. _13. DEFINITIONS.

       In this part:
       (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 part, 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 not solely for compensatory purposes, against a health 
     care provider or health care

[[Page S13329]]

     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. _14. 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 part 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. _15. COMPENSATING PATIENT INJURY.

       (a) Unlimited Amount of Damages for Actual Economic Losses 
     in Health Care Lawsuits.--In any health care lawsuit, nothing 
     in this part 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. _16. 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. _17. 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 has a right of recovery by 
     reimbursement or

[[Page S13330]]

     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. _18. 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. _19. 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 part.

     SEC. _20. 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 part shall not affect the application of the rule 
     of law to such an action; and
       (B) any rule of law prescribed by this part 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 part or otherwise 
     applicable law (as determined under this part) 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 part shall not affect the application of the rule 
     of law to such an action; and
       (B) any rule of law prescribed by this part 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 part or 
     otherwise applicable law (as determined under this part) will 
     apply to such aspect of such action.
       (c) Other Federal Law.--Except as provided in this section, 
     nothing in this part 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. _21. STATE FLEXIBILITY AND PROTECTION OF STATES' RIGHTS.

       (a) Health Care Lawsuits.--The provisions governing health 
     care lawsuits set forth in this part 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 part. The provisions governing 
     health care lawsuits set forth in this part 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 part; or
       (2) prohibits the introduction of evidence regarding 
     collateral source benefits.
       (b) Preemption of Certain State Laws.--No provision of this 
     part shall be construed to preempt any State law (whether 
     effective before, on, or after the date of the enactment of 
     this part) 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 part, notwithstanding 
     section _15(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 part (including 
     the State standards of negligence) shall be governed by 
     otherwise applicable Federal or State law.
       (2) Rule of construction.--Nothing in this part 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 part;
       (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 part;
       (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. _22. APPLICABILITY; EFFECTIVE DATE.

       This part 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 part, except that any health 
     care lawsuit arising from an injury occurring prior to the 
     date of enactment of this part shall be governed by the 
     applicable statute of limitations provisions in effect at the 
     time the injury occurred.
                                 ______
                                 
  SA 3245. 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:

       At the appropriate place, insert the following:

          Subtitle _--Improved Patient Access and Medical Care

         PART I--INCREASED MEDICAID PAYMENTS FOR PEDIATRIC CARE

     SEC. _01. INCREASED PAYMENTS FOR PEDIATRIC CARE UNDER 
                   MEDICAID.

       (a) In General.--

[[Page S13331]]

       (1) Fee-for-service payments.--Section 1902 of the Social 
     Security Act (42 U.S.C. 1396b), as amended by section 
     2001(b)(2), is amended--
       (A) in subsection (a)(13)--
       (i) by striking ``and'' at the end of subparagraph (A);
       (ii) by adding ``and'' at the end of subparagraph (B); and
       (iii) by adding at the end the following new subparagraph:
       ``(C) payment for pediatric care services (as defined in 
     subsection (hh)(1)) furnished by hospitals or physicians (as 
     defined in section 1861(r)) (or for services furnished by 
     other health care professionals that would be pediatric care 
     services under such subsection if furnished by a physician) 
     at a rate not less than--
       ``(i) in the case of such services furnished by physicians 
     (or professionals), 80 percent of the payment rate that would 
     be applicable if the adjustment described in subsection 
     (hh)(2) were to apply to such services and physicians or 
     professionals (as the case may be) under part B of title 
     XVIII (or, if there is no payment rate for such services 
     under part B of title XVIII, the payment rate for the most 
     comparable services, as determined by the Secretary in 
     consultation with the Medicaid and CHIP Payment and Access 
     Commission established under section 1900 and adjusted as 
     appropriate for a pediatric population) for services 
     furnished in 2010, 90 percent of such adjusted payment rate 
     for services and physicians (or professionals) furnished in 
     2011, and 100 percent of such adjusted payment rate for 
     services and hospitals or physicians (or professionals) 
     furnished in 2012 and each subsequent year; and
       ``(ii) in the case of such services furnished by hospitals, 
     80 percent of the payment rate that would be applicable if 
     such services were furnished under part A of title XVIII (or, 
     if there is no payment rate for such services under part A of 
     title XVIII, the payment rate for the most comparable 
     services, as determined by the Secretary in consultation with 
     the Medicaid and CHIP Payment and Access Commission 
     established under section 1900 and adjusted as appropriate 
     for a pediatric population) for services furnished in 2010, 
     90 percent of such payment rate for services furnished in 
     2011, and 100 percent of such payment rate for services 
     furnished in 2012 and each subsequent year;''; and
       (B) by adding at the end the following new subsection:
       ``(hh) Increased Payment for Pediatric Care.--For purposes 
     of subsection (a)(13)(C):
       ``(1) Pediatric care services defined.--The term `pediatric 
     care services' means evaluation and management services, 
     without regard to the specialty of the physician or hospital 
     furnishing the services, that are procedure codes (for 
     services covered under title XVIII) for services in the 
     category designated Evaluation and Management in the 
     Healthcare Common Procedure Coding System (established by the 
     Secretary under section 1848(c)(5) as of December 31, 2009, 
     and as subsequently modified by the Secretary) and that are 
     furnished to an individual who is enrolled in the State plan 
     under this title who has not attained age 19. Such term 
     includes procedure codes established by the Secretary, in 
     consultation with the Medicaid and CHIP Payment and Access 
     Commission established under section 1900, for services 
     furnished under State plans under this title to individuals 
     who have not attained age 19 and for which there is not an a 
     procedure code (or a procedure code that the Secretary, in 
     consultation with such Commission, determines is comparable) 
     established under the Healthcare Common Procedure Coding 
     System.
       ``(2) Adjustment.--The adjustment described in this 
     paragraph is the substitution of 1.25 percent for the update 
     otherwise provided under section 1848(d)(4) for each year 
     beginning with 2010.''.
       (2) Under medicaid managed care plans.--Section 1932(f) of 
     such Act (42 U.S.C. 1396u-2(f)) is amended--
       (A) in the heading, by adding at the end the following: ``; 
     Adequacy of Payment for Pediatric Care Services''; and
       (B) by inserting before the period at the end the 
     following: ``and, in the case of pediatric care services 
     described in section 1902(a)(13)(C), consistent with the 
     minimum payment rates specified in such section (regardless 
     of the manner in which such payments are made, including in 
     the form of capitation or partial capitation)''.
       (b) Increased FMAP.--Section 1905 of such Act (42 U.S.C. 
     1396d), as amended by sections 2006 and 4107(a)(2), is 
     amended
       (1) in the first sentence of subsection (b), by striking 
     ``and'' before ``(4)'' and by inserting before the period at 
     the end the following: ``, and (5) 100 percent (for periods 
     beginning with 2010) with respect to amounts described in 
     subsection (cc)''; and
       (2) by adding at the end the following new subsection:
       ``(cc) For purposes of section 1905(b)(5), the amounts 
     described in this subsection are the following:
       ``(1)(A) The portion of the amounts expended for medical 
     assistance for services described in section 1902(a)(13)(C) 
     furnished on or after January 1, 2010, that is attributable 
     to the amount by which the minimum payment rate required 
     under such section (or, by application, section 1932(f)) 
     exceeds the payment rate applicable to such services under 
     the State plan as of the date of enactment of the Patient 
     Protection and Affordable Care Act.
       ``(B) Subparagraph (A) shall not be construed as preventing 
     the payment of Federal financial participation based on the 
     Federal medical assistance percentage for amounts in excess 
     of those specified under such subparagraph.''.
       (c) Effective Date.--The amendments made by this section 
     shall apply to services furnished on or after January 1, 
     2010.

                PART II--MEDICAL CARE ACCESS PROTECTION

     SEC. _11. SHORT TITLE OF PART.

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

     SEC. _12. 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 part 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. _13. DEFINITIONS.

       In this part:
       (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,

[[Page S13332]]

     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 part, 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 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. _14. 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 part 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. _15. COMPENSATING PATIENT INJURY.

       (a) Unlimited Amount of Damages for Actual Economic Losses 
     in Health Care Lawsuits.--In any health care lawsuit, nothing 
     in this part 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);

[[Page S13333]]

       (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. _16. 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. _17. 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 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. _18. 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. _19. 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 part.

     SEC. _20. 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 part shall not affect the application of the rule 
     of law to such an action; and

[[Page S13334]]

       (B) any rule of law prescribed by this part 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 part or otherwise 
     applicable law (as determined under this part) 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 part shall not affect the application of the rule 
     of law to such an action; and
       (B) any rule of law prescribed by this part 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 part or 
     otherwise applicable law (as determined under this part) will 
     apply to such aspect of such action.
       (c) Other Federal Law.--Except as provided in this section, 
     nothing in this part 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. _21. STATE FLEXIBILITY AND PROTECTION OF STATES' RIGHTS.

       (a) Health Care Lawsuits.--The provisions governing health 
     care lawsuits set forth in this part 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 part. The provisions governing 
     health care lawsuits set forth in this part 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 part; or
       (2) prohibits the introduction of evidence regarding 
     collateral source benefits.
       (b) Preemption of Certain State Laws.--No provision of this 
     part shall be construed to preempt any State law (whether 
     effective before, on, or after the date of the enactment of 
     this part) 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 part, notwithstanding 
     section _15(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 part (including 
     the State standards of negligence) shall be governed by 
     otherwise applicable Federal or State law.
       (2) Rule of construction.--Nothing in this part 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 part;
       (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 part;
       (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. _22. APPLICABILITY; EFFECTIVE DATE.

       This part 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 part, except that any health 
     care lawsuit arising from an injury occurring prior to the 
     date of enactment of this part shall be governed by the 
     applicable statute of limitations provisions in effect at the 
     time the injury occurred.
                                 ______
                                 
  SA 3246. Mr. CASEY 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 974, between lines 9 and 10, insert the following:

     SEC. 3315. EXPANSION OF THE DEFINITION OF A COVERED PART D 
                   DRUG UNDER THE MEDICARE PROGRAM.

       (a) In General.--Section 1860D-2(e)(1)(A) of the Social 
     Security Act (42 U.S.C. 1395w-102(e)(1)(A)) is amended by 
     inserting ``and disposable medical devices which reduce the 
     side effects associated with the treatment of cancer'' after 
     ``1927(k)(2)''.
       (b) Effective Date.--The amendment made by subsection (a) 
     shall apply to drugs dispensed on or after January 1, 2011.
                                 ______
                                 
  SA 3247. 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 2074, after line 25, insert the following:

    TITLE X--TO EXPAND ACCESS TO PRIMARY CARE SERVICES BY IMPROVING 
MEDICARE REIMBURSEMENT FOR PRIMARY CARE PRACTITIONERS WITH A SPECIALTY 
                        DESIGNATION OF NEUROLOGY

              Subtitle A--Access to Primary Care Services

     SEC. 10001. IMPROVED REIMBURSEMENT FOR PRIMARY CARE 
                   PRACTITIONERS WITH A SPECIALTY DESIGNATION OF 
                   NEUROLOGY.

       Section 1833(x)(2)(A)(i)(I) of the Social Security Act, as 
     added by section 5501, is amended by striking ``or pediatric 
     medicine'' and inserting ``neurology, or pediatric 
     medicine''.

               Subtitle B--Medical Care Access Protection

     SEC. 10101. SHORT TITLE.

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

     SEC. 10102. 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 subtitle 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. 10103. DEFINITIONS.

       In this subtitle:
       (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

[[Page S13335]]

     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 subtitle, 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 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. 10104. 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 subtitle 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. 10105. COMPENSATING PATIENT INJURY.

       (a) Unlimited Amount of Damages for Actual Economic Losses 
     in Health Care Lawsuits.--In any health care lawsuit, nothing 
     in this subtitle 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

[[Page S13336]]

     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. 10106. 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. 10107. 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 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. 10108. 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.

[[Page S13337]]

     SEC. 10109. 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 subtitle.

     SEC. 10110. 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 subtitle shall not affect the application of the 
     rule of law to such an action; and
       (B) any rule of law prescribed by this subtitle 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 subtitle or otherwise 
     applicable law (as determined under this subtitle) 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 subtitle shall not affect the application of the 
     rule of law to such an action; and
       (B) any rule of law prescribed by this subtitle 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 subtitle 
     or otherwise applicable law (as determined under this 
     subtitle) will apply to such aspect of such action.
       (c) Other Federal Law.--Except as provided in this section, 
     nothing in this subtitle 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. 10111. STATE FLEXIBILITY AND PROTECTION OF STATES' 
                   RIGHTS.

       (a) Health Care Lawsuits.--The provisions governing health 
     care lawsuits set forth in this subtitle 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 subtitle. The provisions 
     governing health care lawsuits set forth in this subtitle 
     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 subtitle; or
       (2) prohibits the introduction of evidence regarding 
     collateral source benefits.
       (b) Preemption of Certain State Laws.--No provision of this 
     subtitle 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 subtitle, 
     notwithstanding section 10105(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 subtitle 
     (including the State standards of negligence) shall be 
     governed by otherwise applicable Federal or State law.
       (2) Rule of construction.--Nothing in this subtitle 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 subtitle;
       (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 Act;
       (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. 10112. APPLICABILITY; EFFECTIVE DATE.

       This subtitle 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 Act, except that 
     any health care lawsuit arising from an injury occurring 
     prior to the date of enactment of this Act shall be governed 
     by the applicable statute of limitations provisions in effect 
     at the time the injury occurred.
                                 ______
                                 
  SA 3248. Mr. REID proposed an amendment to the bill H.R. 3326, making 
appropriations for the Department of Defense for the fiscal year ending 
September 30, 2010, and for other purposes; as follows:

       At the end of the House Amendment, insert the following:
       The provisions of this Act shall become effective 5 days 
     after enactment.
                                 ______
                                 
  SA 3249. Mr. REID proposed an amendment to the bill H.R. 3326, making 
appropriations for the Department of Defense for the fiscal year ending 
September 30, 2010, and for other purposes; as follows:

       At the end, insert the following:
       The Appropriations Committee is requested to study the 
     impact of any delay in implementing the provisions of the Act 
     on service members families.
                                 ______
                                 
  SA 3250. Mr. REID proposed an amendment SA 3249 proposed by Mr. Reid 
to the bill H.R. 3326, making appropriations for the Department of 
Defense for the fiscal year ending September 30, 2010, and for other 
purposes; as follows:

       At the end, add the following:
       ``and the health care provided to those service members.''
                                 ______
                                 
  SA 3251. Mr. REID proposed an amendment to amendment SA 3250 proposed 
by Mr. Reid to the amendment SA 3249 proposed by Mr. Reid to the bill 
H.R. 3326, making appropriations for the Department of Defense for the 
fiscal year ending September 30, 2010, and for other purposes; as 
follows:

       At the end, add the following:
       ``and the children of service members.''
                                 ______
                                 
  SA 3252. Mr. REID proposed an amendment to amendment SA 3248 proposed 
by Mr. Reid to the bill H.R. 3326, making appropriations for the 
Department of Defense for the fiscal year ending September 30, 2010, 
and for other purposes; as follows:

       Strike ``5 days'' and insert ``1 day''.
                                 ______
                                 
  SA 3253. Ms. MURKOWSKI 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 816, after line 20, insert the following:

     SEC. 3115. INCREASING THE LIMITATION ON CHARGES FOR 
                   PHYSICIANS' SERVICES UNDER THE MEDICARE 
                   PROGRAM.

       (a) In General.--Section 1848(g)(2)(C) of the Social 
     Security Act (42 U.S.C. 1395w-4(g)(2)(C)) is amended by 
     striking ``115 percent'' and all that follows through the 
     period at the end and inserting ``the greater of--
       ``(i) 115 percent of the recognized payment amount under 
     this part for nonparticipating physicians or for 
     nonparticipating suppliers or other persons; or
       ``(ii) the average private insurance reimbursement rate for 
     the item or service (as determined by the Secretary for that 
     geographic practice cost index area).''.
       (b) Effective Date.--The amendment made by subsection (a) 
     shall apply to items and services furnished on or after the 
     date of the enactment of this Act.
                                 ______
                                 
  SA 3254. Ms. MURKOWSKI 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 816, after line 20, insert the following:

     SEC. 3115. ALLOWING INDIVIDUALS TO CHOOSE TO OPT OUT OF THE 
                   MEDICARE PART A BENEFIT.

       Notwithstanding any other provision of law, in the case of 
     an individual who elects to opt-out of benefits under part A 
     of title XVIII of the Social Security Act, such individual 
     shall not be required to--
       (1) opt-out of benefits under title II of such Act as a 
     condition for making such election; and
       (2) repay any amount paid under such part A for items and 
     services furnished prior to making such election.

[[Page S13338]]

                                 ______
                                 
  SA 3255. Ms. MURKOWSKI 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:

       At the appropriate place in title II, insert the following:

     SEC. __. MEDICAL MALPRACTICE REFORM.

       Notwithstanding any other provision of this Act, a State 
     that receives Federal funds under any amendment made by this 
     Act to the Medicaid program under title XIX of the Social 
     Security Act (42 U.S.C. 1396 et seq.) to increase eligibility 
     for participation in such program, shall implement reforms in 
     the State medical malpractice litigation system that are 
     designed to achieve cost savings through the development and 
     implementation of alternatives to tort litigation.
                                 ______
                                 
  SA 3256. Mr. BENNET submitted an amendment intended to be proposed by 
him 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:

       At the appropriate place, insert the following:

     SEC. __. LONG-TERM FISCAL ACCOUNTABILITY.

       (a) Purpose.--The purpose of this section is--
       (1) to provide a fail-safe mechanism for ensuring that 
     actual budgetary savings from this Act equal or exceed 
     initial estimates of such savings;
       (2) to create expedited procedures for Congress to consider 
     legislative changes to increase savings to at least the 
     initial estimate of this Act if actual budgetary savings are 
     less than initial estimates; and
       (3) to ensure that additional budget savings will further 
     extend the solvency of the HI Trust Fund, lower premiums and 
     other out-of-pocket costs for Medicare beneficiaries, and 
     reduce the national debt.
       (b) Definitions.--For the purposes of this section:
       (1) Budgetary effects.--The term ``budgetary effects'' 
     refers to the sum of the spending reductions and revenue 
     increases for the period 2010 through 2019 from this Act less 
     the sum of the spending increases and revenue reductions 
     resulting from this Act for the same time period. The 
     calculation shall not include an estimate of the change in 
     federal interest payments.
       (2) Federal budgetary commitment to health care.--The term 
     ``Federal budgetary commitment to health care'' refers to the 
     sum of net Federal outlays for all Federal programs and tax 
     preferences for health care.
       (3) OMB proposal.--The term ``OMB proposal'' refers to the 
     proposed legislative language and such proposal as 
     subsequently modified, if modified by amendment in either 
     House required under subsection (e)(2)(C) to carry out 
     recommendations pursuant to subsection (e)(2)(A).
       (4) Savings target.--The term ``savings target'' refers to 
     the net total provided under subsection (d)(1) for the period 
     2010 through 2019.
       (c) CBO Advisory Reports.--Starting on October 1, 2012, and 
     every 2 years thereafter, through October 1, 2018, not later 
     than 60 days after the start of the fiscal year, the 
     Congressional Budget Office (CBO) shall submit an updated 
     advisory report to Congress and the President. The updated 
     report shall include a detailed estimate of the budgetary 
     effects of this Act based on the information available for 
     the period 2010 through 2019, as well as information on the 
     budgetary effects for the period 2020 through 2029.
       (d) OMB Cost Estimate Reports.--
       (1) Initial cost estimate report.--Not later than 60 days 
     after the date of enactment of this Act, the Director of the 
     Office of Management and Budget (OMB) shall submit to 
     Congress a report containing an estimate of the budgetary 
     effects of this Act for 2010 through 2019, as well as 
     information on the budgetary effects for 2020 through 2029. 
     The estimate of net savings produced by this Act for the 
     period 2010 through 2019 period shall serve as the savings 
     target for future cost estimate reports, provided that the 
     OMB estimate is not less than the final CBO estimate of net 
     savings produced by this Act made by CBO prior to its 
     enactment. If the savings estimated by OMB is less than the 
     amount estimated by the CBO, then the estimate of net savings 
     produced by the CBO shall serve as the savings target.
       (2) Updated cost estimate reports.--Starting on October 1, 
     2012, and every 2 years thereafter, through fiscal year 2019, 
     OMB shall reestimate the budgetary effects of this Act based 
     on the information available at that time. The updated cost 
     estimate report shall include a detailed reestimate of the 
     budgetary effects of this Act for the period 2010 through 
     2019, as well as information on the budgetary effects for the 
     period 2020 through 2029.
       (e) Biennial Submission to Congress.--
       (1) In general.--Starting on October 1, 2012, and every 2 
     years thereafter, through fiscal year 2019, OMB shall submit 
     the following to Congress along with its submission of the 
     upcoming fiscal year budget of the United States Government 
     required pursuant to section 1105 of title 31 of the United 
     States Code:
       (A) The updated cost estimate report completed pursuant to 
     subsection (d)(2).
       (B) An explanation of any discrepancies between the OMB 
     updated cost estimate report and the updated advisory report 
     prepared by CBO pursuant to subsection (c).
       (2) Required information upon savings shortfall.--For a 
     fiscal year in which the amount estimated by OMB in its 
     updated cost estimate report for the period 2010 through 2019 
     is less than the savings target, OMB shall also submit the 
     following:
       (A) Recommendations for increasing actual savings to or 
     above the level of the savings target for years where the 
     amount estimated under the updated cost estimate report is 
     less than the savings target.
       (B) An explanation of each recommendation.
       (C) Proposed legislative language to carry out such 
     recommendations (OMB proposal).
       (D) Any other appropriate information.
       (3) Considerations.--In developing and submitting the 
     information required under paragraph (2), the OMB shall, to 
     the extent feasible, give priority to recommendations that--
       (A) preserve access to affordable health care;
       (B) extend the solvency of the Medicare HI Trust Fund; and
       (C) strengthen the long-term viability of the programs 
     created under this Act.
       (4) Consultation with the department of health and human 
     services and chief actuary of the centers of medicare and 
     medicaid services.--In carrying out this subsection, OMB 
     shall consult with, including submitting a draft copy of any 
     recommendations and legislation implementing such 
     recommendations to, the Secretary of the Department of Health 
     and Human Services and the Chief Actuary of the Centers of 
     Medicare and Medicaid Services.
       (f) Expedited Consideration of OMB Proposal.--
       (1) Introduction of omb proposal.--The OMB proposal shall 
     be introduced in the House of Representatives and in the 
     Senate not later than 5 days of session after receipt by the 
     Congress pursuant to subsection (e), by the majority leader 
     of each House of Congress, for himself, the minority leader 
     of each House of Congress, for himself, or any member of the 
     House designated by the majority leader or minority leader. 
     If the OMB proposal is not introduced in accordance with the 
     preceding sentence in either House of Congress, then any 
     Member of that House may introduce the OMB proposal on any 
     day thereafter. Upon introduction, the OMB proposal shall be 
     referred to the relevant committees of jurisdiction.
       (2) Committee consideration.--The committees to which the 
     OMB proposal is referred shall report the OMB proposal 
     without any revision and with a favorable recommendation, an 
     unfavorable recommendation, or without recommendation, not 
     later than 30 calendar days after the date of introduction of 
     the bill in that House, or the first day thereafter on which 
     that House is in session. If any committee fails to report 
     the bill within that period, that committee shall be 
     automatically discharged from consideration of the bill, and 
     the bill shall be placed on the appropriate calendar.
       (3) Fast track consideration in house of representatives.--
       (A) Proceeding to consideration.--It shall be in order, not 
     later than 7 days of session after the date on which an OMB 
     proposal is reported or discharged from all committees to 
     which it was referred, for the majority leader of the House 
     of Representatives or the majority leader's designee, to move 
     to proceed to the consideration of the OMB proposal. It shall 
     also be in order for any Member of the House of 
     Representatives to move to proceed to the consideration of 
     the OMB proposal at any time after the conclusion of such 7-
     day period. All points of order against the motion are 
     waived. Such a motion shall not be in order after the House 
     has disposed of a motion to proceed on the OMB proposal. The 
     previous question shall be considered as ordered on the 
     motion to its adoption without intervening motion. The motion 
     shall not be debatable. A motion to reconsider the vote by 
     which the motion is disposed of shall not be in order.
       (B) Consideration.--The OMB proposal shall be considered as 
     read. The previous question shall be considered as ordered on 
     the OMB proposal to its passage without intervening motion 
     except 50 hours of debate, including the 2 amendments 
     described in subparagraph (E), equally divided and controlled 
     by the proponent and an opponent. A motion to limit debate 
     shall be in order during such debate. A motion to reconsider 
     the vote on passage of the OMB proposal shall not be in 
     order.
       (C) Appeals.--Appeals from decisions of the chair relating 
     to the application of the Rules of the House of 
     Representatives to the procedure relating to the OMB proposal 
     shall be decided without debate.
       (D) Application of house rules.--Except to the extent 
     specifically provided in this paragraph, consideration of an 
     OMB proposal shall be governed by the Rules of the House of 
     Representatives. It shall not be in order in the House of 
     Representatives to consider any

[[Page S13339]]

     OMB proposal introduced pursuant to the provisions of this 
     subsection under a suspension of the rules pursuant to clause 
     1 of House Rule XV, or under a special rule reported by the 
     House Committee on Rules.
       (E) Amendments.--
       (i) In general.--It shall be in order for the majority 
     leader, or his designee, and the minority leader, or his 
     designee, to each offer one amendment in the nature of a 
     substitute to the OMB proposal, provided that any such 
     amendment would not have the effect of decreasing any 
     specific budget outlay reductions below the level of such 
     outlay reductions provided in the OMB proposal, or would have 
     the effect of reducing Federal revenue increases below the 
     level of such revenue increases provided in the OMB proposal, 
     unless such amendment makes a reduction in other specific 
     budget outlays related to Federal health expenditures, an 
     increase in other specific Federal revenues related to 
     Federal health expenditures, or a combination thereof, at 
     least equivalent to the sum of any increase in outlays or 
     decrease in revenues provided by such amendment.
       (ii) Scoring.--CBO scores of the OMB proposal and any 
     amendment in the nature of a substitute shall be used for the 
     purpose of determining whether such amendment achieves at 
     least the same amount of savings as the OMB proposal.
       (iii) Multiple amendments.--If more than 1 amendment is 
     offered under this subparagraph, then each amendment shall be 
     considered separately, and the amendment receiving both an 
     affirmative vote of three-fifths of the Members, duly chosen 
     and sworn, and the highest number of votes shall be the 
     amendment adopted.
       (F) Vote on passage.--Immediately following the conclusion 
     of consideration of the OMB proposal, the vote on passage of 
     the OMB proposal shall occur without any intervening action 
     or motion and shall require an affirmative vote of three-
     fifths of the Members, duly chosen and sworn. If the OMB 
     proposal is passed, the Clerk of the House of Representatives 
     shall cause the bill to be transmitted to the Senate before 
     the close of the next day of session of the House.
       (4) Fast track consideration in senate.--
       (A) In general.--Notwithstanding rule XXII of the Standing 
     Rules of the Senate, it is in order, not later than 7 days of 
     session after the date on which an OMB proposal is reported 
     or discharged from all committees to which it was referred, 
     for the majority leader of the Senate or the majority 
     leader's designee to move to proceed to the consideration of 
     the OMB proposal. It shall also be in order for any Member of 
     the Senate to move to proceed to the consideration of the OMB 
     proposal at any time after the conclusion of such 7-day 
     period. A motion to proceed is in order even though a 
     previous motion to the same effect has been disagreed to. All 
     points of order against the motion to proceed to the OMB 
     proposal are waived. The motion to proceed is not debatable. 
     The motion is not subject to a motion to postpone. A motion 
     to reconsider the vote by which the motion is agreed to or 
     disagreed to shall not be in order. If a motion to proceed to 
     the consideration of the OMB proposal is agreed to, the OMB 
     proposal shall remain the unfinished business until disposed 
     of.
       (B) Debate.--Consideration of an OMB proposal and of all 
     debatable motions and appeals in connection therewith shall 
     not exceed a total of 50 hours. Debate shall be divided 
     equally between the majority and minority leaders or their 
     designees. A motion further to limit debate on the OMB 
     proposal is in order. Any debatable motion or appeal is 
     debatable for not to exceed 1 hour, to be divided equally 
     between those favoring and those opposing the motion or 
     appeal. All time used for consideration of the OMB proposal, 
     including time used for quorum calls and voting, shall be 
     counted against the total 50 hours of consideration.
       (C) Amendments.--
       (i) In general.--It shall be in order for the majority 
     leader, or his designee, and the minority leader, or his 
     designee, to each offer one amendment in the nature of a 
     substitute to the OMB proposal, provided that any such 
     amendment would not have the effect of decreasing any 
     specific budget outlay reductions below the level of such 
     outlay reductions provided in OMB proposal, or would have the 
     effect of reducing Federal revenue increases below the level 
     of such revenue increases provided in the OMB proposal, 
     unless such amendment makes a reduction in other specific 
     budget outlays related to Federal health expenditures, an 
     increase in other specific Federal revenues related to 
     Federal health expenditures, or a combination thereof, at 
     least equivalent to the sum of any increase in outlays or 
     decrease in revenues provided by such amendment.
       (ii) Scoring.--CBO scores of the OMB proposal and any 
     amendment in the nature of a substitute shall be used for the 
     purpose of determining whether such amendment achieves at 
     least the same amount of savings as the OMB proposal.
       (D) Vote on passage.--The vote on passage shall occur 
     immediately following the conclusion of the debate on the OMB 
     proposal and a single quorum call at the conclusion of the 
     debate if requested. Passage shall require an affirmative 
     vote of three-fifths of the Members, duly chosen and sworn.
       (E) Rulings of the chair on procedure.--Appeals from the 
     decisions of the Chair relating to the application of the 
     rules of the Senate to the procedure relating to a OMB 
     proposal shall be decided without debate.
       (5) Rules to coordinate action with other house.--
       (A) Referral.--If, before the passage by 1 House of an OMB 
     proposal of that House, that House receives from the other 
     House an OMB proposal, then such proposal from the other 
     House shall not be referred to a committee and shall 
     immediately be placed on the calendar.
       (B) Treatment of omb proposal of other house.--If 1 House 
     fails to introduce or consider a OMB proposal under this 
     section, the OMB proposal of the other House shall be 
     entitled to expedited floor procedures under this section.
       (C) Procedure.--
       (i) OMB proposal in the senate.--If prior to passage of the 
     OMB proposal in the Senate, the Senate receives an OMB 
     proposal from the House, the procedure in the Senate shall be 
     the same as if no OMB proposal had been received from the 
     House except that--

       (I) the vote on final passage shall be on the OMB proposal 
     of the House if it is identical to the OMB proposal then 
     pending for passage in the Senate; or
       (II) if the OMB proposal from the House is not identical to 
     the OMB proposal then pending for passage in the Senate and 
     the Senate then passes the Senate OMB proposal, the Senate 
     shall be considered to have passed the House OMB proposal as 
     amended by the text of the Senate OMB proposal.

       (ii) Disposition of the omb proposal.--Upon disposition of 
     the OMB proposal received from the House, it shall no longer 
     be in order to consider the OMB proposal originated in the 
     Senate.
       (D) Treatment of companion measures in the senate.--If 
     following passage of the OMB proposal in the Senate, the 
     Senate then receives an OMB proposal from the House of 
     Representatives that is the same as the OMB proposal passed 
     by the House, the House-passed OMB proposal shall not be 
     debatable. If the House-passed OMB proposal is identical to 
     the Senate-passed OMB proposal, the vote on passage of the 
     OMB proposal in the Senate shall be considered to be the vote 
     on passage of the OMB proposal received from the House of 
     Representatives. If it is not identical to the House-passed 
     OMB proposal, then the Senate shall be considered to have 
     passed the OMB proposal of the House as amended by the text 
     of the Senate OMB proposal.
       (E) Consideration in conference.--Upon passage of the OMB 
     proposal, the Senate shall be deemed to have insisted on its 
     amendment and requested a conference with the House of 
     Representatives on the disagreeing votes of the two Houses, 
     and the Chair be authorized to appoint conferees on the part 
     of the Senate, without any intervening action.
       (F) Action on conference reports in senate.--
       (i) Motion to proceed.--A motion to proceed to the 
     consideration of the conference report on the OMB proposal 
     may be made even though a previous motion to the same effect 
     has been disagreed to.
       (ii) Consideration.--During the consideration in the Senate 
     of the conference report (or a message between Houses) on the 
     OMB proposal, and all amendments in disagreement, and all 
     amendments thereto, and debatable motions and appeals in 
     connection therewith, debate (or consideration) shall be 
     limited to 10 hours, to be equally divided between, and 
     controlled by, the majority leader and minority leader or 
     their designees. Debate on any debatable motion or appeal 
     related to the conference report (or a message between 
     Houses) shall be limited to 1 hour, to be equally divided 
     between, and controlled by, the mover and the manager of the 
     conference report (or a message between Houses).
       (iii) Debate if defeated.--If the conference report is 
     defeated, debate on any request for a new conference and the 
     appointment of conferees shall be limited to 1 hour, to be 
     equally divided between, and controlled by, the manager of 
     the conference report and the minority leader or his 
     designee, and should any motion be made to instruct the 
     conferees before the conferees are named, debate on such 
     motion shall be limited to one-half hour, to be equally 
     divided between, and controlled by, the mover and the manager 
     of the conference report. Debate on any amendment to any such 
     instructions shall be limited to 20 minutes, to be equally 
     divided between and controlled by the mover and the manager 
     of the conference report. In all cases when the manager of 
     the conference report is in favor of any motion, appeal, or 
     amendment, the time in opposition shall be under the control 
     of the minority leader or his designee.
       (iv) Amendments in disagreement.--If there are amendments 
     in disagreement to a conference report on the OMB proposal, 
     time on each amendment shall be limited to 30 minutes, to be 
     equally divided between, and controlled by, the manager of 
     the conference report and the minority leader or his 
     designee. No amendment that is not germane to the provisions 
     of such amendments shall be received.
       (G) Vote on conference report in each house.--Passage of 
     the conference in each House shall be by an affirmative vote 
     of three-fifths of the Members of that House, duly chosen and 
     sworn.
       (H) Veto.--If the President vetoes the bill debate on a 
     veto message in the Senate under this subsection shall be 1 
     hour equally divided between the majority and minority 
     leaders or their designees.

[[Page S13340]]

       (6) Rules of the senate and house of representatives.--This 
     subsection is enacted by Congress--
       (A) as an exercise of the rulemaking power of the Senate 
     and the House of Representatives, respectively, and is deemed 
     to be part of the rules of each House, respectively but 
     applicable only with respect to the procedure to be followed 
     in that House in the case of bill under this section, and it 
     supersedes other rules only to the extent that it is 
     inconsistent with such rules; and
       (B) with full recognition of the constitutional right of 
     either House to change the rules (so far as they relate to 
     the procedure of that House) at any time, in the same manner, 
     and to the same extent as in the case of any other rule of 
     that House.
                                 ______
                                 
  SA 3257. Ms. MURKOWSKI 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 352, line 8, strike ``50'' and insert ``500''.
       On page 352, line 13, strike ``50'' and insert ``500''.
       On page 352, line 16, strike ``50'' and insert ``500''.
       On page 352, line 20, strike ``50'' and insert ``500''.
                                 ______
                                 
  SA 3258. Mrs. SHAHEEN 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 869, between lines 14 and 15, insert the following:

     SEC. 3143. FLOOR ON AREA WAGE INDEX.

       (a) In General.--Notwithstanding any other provision of 
     law, beginning with discharges occurring on or after October 
     1, 2009, for purposes of section 1886(d)(3)(E) of the Social 
     Security Act (42 U.S.C. 1395ww(d)(3)(E)), the area wage index 
     applicable under such section to hospitals with Medicare 
     provider numbers 300001, 300003, 300005, 300011, 300012, 
     300014, 300017, 300018, 300019, 300020, 300023, 300029, and 
     300034 shall not be less than the post-reclassification area 
     wage index applicable to the hospital for purposes of 
     determining payments during the period beginning on or after 
     October 1, 2006, and before October 1, 2007.
       (b) Implementation.--The Secretary of Health and Human 
     Services (in this section referred to as the ``Secretary'') 
     shall make a proportional adjustment in the standardized 
     amounts determined under section 1886(d)(3) of the Social 
     Security Act (42 U.S.C. 1395ww(d)(3)) to assure that the 
     provisions of this section do not result in aggregate 
     payments under section 1886 of such Act (42 U.S.C. 1395ww) 
     that are greater or less than those that would otherwise be 
     made. Notwithstanding any other provision of law, for 
     purposes of making adjustments under this subsection, the 
     Secretary shall not further adjust the wage index or 
     standardized amounts for any area, State, or region within 
     the United States.

                          ____________________