[House Report 111-607]
[From the U.S. Government Publishing Office]


111th Congress                                                   Report
  2d Session             HOUSE OF REPRESENTATIVES               111-607
=======================================================================
 
              FAMILY HEALTH CARE ACCESSIBILITY ACT OF 2010 

                                _______
                                

 September 16, 2010.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

 Mr. Waxman, from the Committee on Energy and Commerce, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 1745]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Energy and Commerce, to whom was referred 
the bill (H.R. 1745) to amend the Public Health Service Act to 
provide liability protections for volunteer practitioners at 
health centers under section 330 of such Act, having considered 
the same, report favorably thereon with an amendment and 
recommend that the bill as amended do pass.

                                CONTENTS

                                                                   Page
Amendment........................................................     1
Purpose and Summary..............................................     3
Background and Need for Legislation..............................     3
Committee Consideration..........................................     3
Committee Votes..................................................     4
Committee Oversight Findings and Recommendations.................     4
New Budget Authority, Entitlement Authority, and Tax Expenditures     4
Statement of General Performance Goals and Objectives............     4
Constitutional Authority Statement...............................     4
Earmarks and Tax and Tariff Benefits.............................     4
Federal Advisory Committee Statement.............................     4
Applicability of Law to Legislative Branch.......................     5
Federal Mandates Statement.......................................     5
Committee Cost Estimate..........................................     5
Congressional Budget Office Cost Estimate........................     5
Section-by-Section Analysis of the Legislation...................     7
Changes in Existing Law Made by the Bill, as Reported............     9

                               Amendment

  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Family Health Care Accessibility Act 
of 2010''.

SEC. 2. LIABILITY PROTECTIONS FOR HEALTH PROFESSIONAL VOLUNTEERS AT 
                    COMMUNITY HEALTH CENTERS.

  Section 224 of the Public Health Service Act (42 U.S.C. 233) is 
amended by adding at the end the following:
  ``(q)(1) For purposes of this section, a health professional 
volunteer at an entity described in subsection (g)(4) shall, in 
providing a health professional service eligible for funding under 
section 330 to an individual, be deemed to be an employee of the Public 
Health Service for a calendar year that begins during a fiscal year for 
which a transfer was made under paragraph (4)(C). The preceding 
sentence is subject to the provisions of this subsection.
  ``(2) In providing a health service to an individual, a health care 
practitioner shall for purposes of this subsection be considered to be 
a health professional volunteer at an entity described in subsection 
(g)(4) if the following conditions are met:
          ``(A) The service is provided to the individual at the 
        facilities of an entity described in subsection (g)(4), or 
        through offsite programs or events carried out by the entity.
          ``(B) The entity is sponsoring the health care practitioner 
        pursuant to paragraph (3)(B).
          ``(C) The health care practitioner does not receive any 
        compensation for the service from the individual or from any 
        third-party payer (including reimbursement under any insurance 
        policy or health plan, or under any Federal or State health 
        benefits program), except that the health care practitioner may 
        receive repayment from the entity described in subsection 
        (g)(4) for reasonable expenses incurred by the health care 
        practitioner in the provision of the service to the individual.
          ``(D) Before the service is provided, the health care 
        practitioner or the entity described in subsection (g)(4) posts 
        a clear and conspicuous notice at the site where the service is 
        provided of the extent to which the legal liability of the 
        health care practitioner is limited pursuant to this 
        subsection.
          ``(E) At the time the service is provided, the health care 
        practitioner is licensed or certified in accordance with 
        applicable law regarding the provision of the service.
  ``(3) Subsection (g) (other than paragraphs (3) and (5)) and 
subsections (h), (i), and (l) apply to a health care practitioner for 
purposes of this subsection to the same extent and in the same manner 
as such subsections apply to an officer, governing board member, 
employee, or contractor of an entity described in subsection (g)(4), 
subject to paragraph (4) and subject to the following:
          ``(A) The first sentence of paragraph (1) applies in lieu of 
        the first sentence of subsection (g)(1)(A).
          ``(B) With respect to an entity described in subsection 
        (g)(4), a health care practitioner is not a health professional 
        volunteer at such entity unless the entity sponsors the health 
        care practitioner. For purposes of this subsection, the entity 
        shall be considered to be sponsoring the health care 
        practitioner if--
                  ``(i) with respect to the health care practitioner, 
                the entity submits to the Secretary an application 
                meeting the requirements of subsection (g)(1)(D); and
                  ``(ii) the Secretary, pursuant to subsection 
                (g)(1)(E), determines that the health care practitioner 
                is deemed to be an employee of the Public Health 
                Service.
          ``(C) In the case of a health care practitioner who is 
        determined by the Secretary pursuant to subsection (g)(1)(E) to 
        be a health professional volunteer at such entity, this 
        subsection applies to the health care practitioner (with 
        respect to services performed on behalf of the entity 
        sponsoring the health care practitioner pursuant to 
        subparagraph (B)) for any cause of action arising from an act 
        or omission of the health care practitioner occurring on or 
        after the date on which the Secretary makes such determination.
          ``(D) Subsection (g)(1)(F) applies to a health care 
        practitioner for purposes of this subsection only to the extent 
        that, in providing health services to an individual, each of 
        the conditions specified in paragraph (2) is met.
  ``(4)(A) Amounts in the fund established under subsection (k)(2) 
shall be available for transfer under subparagraph (C) for purposes of 
carrying out this subsection.
  ``(B) Not later May 1 of each fiscal year, the Attorney General, in 
consultation with the Secretary, shall submit to the Congress a report 
providing an estimate of the amount of claims (together with related 
fees and expenses of witnesses) that, by reason of the acts or 
omissions of health professional volunteers, will be paid pursuant to 
this section during the calendar year that begins in the following 
fiscal year. Subsection (k)(1)(B) applies to the estimate under the 
preceding sentence regarding health professional volunteers to the same 
extent and in the same manner as such subsection applies to the 
estimate under such subsection regarding officers, governing board 
members, employees, and contractors of entities described in subsection 
(g)(4).
  ``(C) Not later than December 31 of each fiscal year, the Secretary 
shall transfer from the fund under subsection (k)(2) to the appropriate 
accounts in the Treasury an amount equal to the estimate made under 
subparagraph (B) for the calendar year beginning in such fiscal year, 
subject to the extent of amounts in the fund.
  ``(5)(A) This subsection takes effect on October 1, 2011, except as 
provided in subparagraph (B).
  ``(B) Effective on the date of the enactment of this subsection--
          ``(i) the Secretary may issue regulations for carrying out 
        this subsection, and the Secretary may accept and consider 
        applications submitted pursuant to paragraph (3)(B); and
          ``(ii) reports under paragraph (4)(B) may be submitted to the 
        Congress.''.

                          Purpose and Summary

    H.R. 1745, the ``Family Health Care Accessibility Act of 
2009'', was introduced by Reps. Tim Murphy (R-PA) and Gene 
Green (D-TX) and referred to the Committee on Energy and 
Commerce on March 26, 2009.
    The goal of H.R. 1745 is to remove possible disincentives 
for health care practitioners to volunteer at community health 
centers. The legislation amends the Public Health Service Act 
to provide liability protections for volunteer practitioners at 
community health centers.

                  Background and Need for Legislation

    Currently all medical professionals employed by health 
centers are covered under the Federal Tort Claims Act (FTCA) 
for medical malpractice. In order to receive this coverage, 
each health center must undergo extensive risk management 
training and have in place continuous oversight mechanisms to 
reduce the risk of malpractice.
    Individuals seeking to volunteer at a health center must 
either have their own independent coverage or rely on the 
Volunteer Protection Act (VPA), which can complicate a health 
center's risk management practices. Indeed, VPA coverage does 
not have the same malpractice coverage as FTCA. Moreover, the 
possibility of malpractice litigation may dissuade some 
professionals from volunteering.

                        Committee Consideration

    H.R. 1745, the ``Family Health Care Accessibility Act of 
2009'', was introduced by Reps. Tim Murphy (R-PA) and Gene 
Green (D-TX) on March 26, 2009, and referred to the Committee 
on Energy and Commerce. Subsequently, the bill was referred to 
the Subcommittee on Health on March 30, 2010. The Subcommittee 
met in open markup session to consider H.R. 1745 on July 22, 
2010. An amendment in the nature of a substitute (manager's 
amendment) by Rep. Gene Green of Texas was adopted by a voice 
vote. Subsequently, H.R. 1745 was favorably forwarded to the 
full Committee, amended, by a voice vote.
    On July 28, 2010, the Committee on Energy and Commerce met 
in open markup session and considered H.R. 1745 as approved by 
the Subcommittee. An amendment offered by Rep. Gene Green of 
Texas was adopted by a voice vote. Subsequently, the Committee 
ordered H.R. 1745 favorably reported to the House, amended, by 
a voice vote.

                            Committee Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee to list each record vote 
on the motion to report legislation and amendments thereto. A 
motion by Mr. Waxman ordering H.R. 1745 reported to the House, 
amended, was approved by a voice vote. There were no record 
votes taken during consideration of this bill.

            Committee Oversight Findings and Recommendations

    In compliance with clause 3(c)(1) of rule XIII and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the oversight findings and recommendations of the Committee are 
reflected in the descriptive portions of this report, including 
the finding that the possibility of malpractice litigation may 
dissuade some health care professionals from volunteering at 
community health centers.

   New Budget Authority, Entitlement Authority, and Tax Expenditures

    Regarding compliance with clause 3(c)(2) of rule XIII of 
the Rules of the House of Representatives, the Committee finds 
that H.R. 1745 would result in no new budget authority, 
entitlement authority, or tax expenditures or revenues.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the performance goals and 
objectives of the Committee are reflected in the descriptive 
portions of this report, including the goal to remove possible 
disincentives for health care practitioners to volunteer at 
community health centers.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds that the 
constitutional authority for H.R. 1745 is provided under 
Article I, section 8, clauses 3 and 18 of the Constitution of 
the United States.

                  Earmarks and Tax and Tariff Benefits

    H.R. 1745 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9(d), 9(e), or 9(f) of rule XXI of the Rules of the 
House of Representatives.

                  Federal Advisory Committee Statement

    The Committee finds that the legislation does not establish 
or authorize the establishment of an advisory committee within 
the definition of 5 U.S.C. App., section 5(b) of the Federal 
Advisory Committee Act.

             Applicability of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch where the bill relates to terms and conditions of 
employment or access to public services and accommodations. 
H.R. 1745 contains no such provisions.

                       Federal Mandates Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act of 1974 (as amended by section 101(a)(2) of the 
Unfunded Mandates Reform Act, P.L. 104-4) requires a statement 
on whether the provisions of the report include unfunded 
mandates. In compliance with this requirement the Committee 
adopts as its own the estimates of federal mandates prepared by 
the Director of the Congressional Budget Office.

                        Committee Cost Estimate

    Pursuant to clause 3(d)(2) of rule XIII of the Rules of the 
House of Representatives, the Committee adopts as its own the 
cost estimate of H.R. 1745 prepared by the Director of the 
Congressional Budget Office pursuant to section 402 of the 
Congressional Budget Act of 1974.

               Congressional Budget Office Cost Estimate

    With respect to the requirements of clause 3(c)(3) of rule 
XIII of the Rules of the House of Representatives and section 
402 of the Congressional Budget Act of 1974, the Committee has 
received the following cost estimate for H.R. 1745 from the 
Director of the Congressional Budget Office:

                                                 September 7, 2010.
Hon. Henry A. Waxman,
Chairman, Committee on Energy and Commerce,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1745, the Family 
Health Care Accessibility Act of 2010.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Lisa Ramirez-
Branum.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

H.R. 1745--Family Health Care Accessibility Act of 2010

    Summary: H.R. 1745 would amend the Public Health Service 
Act to expand the pool of individuals provided with liability 
protection under the Federal Tort Claims Act (FTCA).
    CBO estimates that implementing the bill would cost $1 
million for 2011 and $18 million over the 2011-2015 period, 
assuming the appropriation of necessary amounts. CBO estimates 
that funding the act would require appropriations totalling $6 
million in 2011 and $31 million over the 2011-2015 period. 
Enacting this legislation would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    H.R. 1745 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
    Estimated cost to the federal government: The estimated 
budgetary impact of H.R. 1745 is shown in the following table. 
The costs of this legislation fall within budget function 550 
(health).

----------------------------------------------------------------------------------------------------------------
                                                               By fiscal year, in millions of dollars--
                                                     -----------------------------------------------------------
                                                                                                          2011-
                                                        2011      2012      2013      2014      2015      2015
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATIONEstimated Authorization Level.......................         6         6         6         6         6        31
Estimated Outlays...................................         1         2         4         5         6        18
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: Under current law, the Federal Tort 
Claims Act (FTCA) provides liability protection to employees 
and contractors of certain health centers because those 
individuals are considered employees of the federal government. 
In doing so, the government defends all medical liability 
claims against health center employees and pays any claims 
arising from the liability. H.R. 1745 would grant that 
protection to health care professionals who volunteer at those 
health centers.
    The liability protection for volunteers under H.R. 1745 
would be conditional upon the appropriation of funds, in 
addition to existing FTCA resources, for the purposes of 
covering volunteers.\1\ For this estimate, CBO assumes that 
H.R. 1745 will be enacted near the beginning of fiscal year 
2011 and funds will be appropriated beginning in fiscal year 
2011 and each year thereafter. Based on historical program 
expenditures for existing liability protections, the projected 
demand for health care professionals, and the potential role of 
volunteer staff at health centers, CBO estimates that covering 
volunteers under the FTCA would require the appropriation of $6 
million for 2011 and $31 million over the 2011-2015 period. CBO 
estimates that implementing the FTCA expansion would cost $18 
million over the 2011-2015 period, assuming appropriation of 
the necessary amounts.
---------------------------------------------------------------------------
    \1\The Consolidated Appropriations Act, 2010, provided $44 million 
for FTCA coverage of health center employees.
---------------------------------------------------------------------------
    Intergovernmental and private-sector impact: H.R. 1745 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would impose no costs on state, local, or 
tribal governments.
    Estimate prepared by: Federal Costs and Impact on State, 
Local, and Tribal Governments: Lisa Ramirez-Branum, Impact on 
the Private Sector: Jimmy Jin.
    Estimate approved by: Peter H. Fontaine, Assistant Director 
for Budget Analysis.

             Section-by-Section Analysis of the Legislation


Section 1. Short title

    Section 1 designates that the short title may be cited as 
the ``Family Health Care Accessibility Act of 2010''.

Section 2. Liability protections for health professional volunteers at 
        community health centers

    Section 2 amends section 224 of the Public Health Service 
Act (PHSA) (42 U.S.C. 233), the provision of current law that 
deals with the applicability of the Federal Tort Claims Act 
(FTCA) to certain employees of the Public Health Service (PHS) 
and certain employees of grantees under the PHSA. The new 
provision would deem a health care practitioner who volunteers 
at community health centers (CHCs) to be an employee of the 
PHS. The original bill, as introduced, would have applied only 
to physicians and psychologists. The bill, as reported (in the 
form of an amendment in the nature of a substitute), applies to 
all healthcare professional volunteers.
    Under this section, this deemed status would apply only if:
           health services would be eligible for 
        funding under section 330 of the PHSA;
           health services are provided at the 
        facilities of the CHC or in a program or event 
        sponsored by the CHC;
           the CHC is sponsoring the practitioner;
           the practitioner does not receive 
        compensation for the services provided;
           the practitioner or CHC posts clear notice 
        of the applicability of the FTCA; and
           the practitioner is licensed or certified in 
        accordance with applicable law.
    In addition, in order to have these provisions apply to a 
practitioner, the CHC must submit an application to the 
Secretary and the Secretary must determine that the 
practitioner meets the relevant requirements of the PHSA. This 
process is based off the current process in which volunteers at 
free health clinics receive FTCA protection. The FTCA 
protections apply to any cause of action that arises from acts 
or omissions of the practitioner on or after the Secretary's 
determination.
    Money to pay any judgments against a volunteer practitioner 
under this provision is to be made available from the fund 
established under subsection (k)(2) of section 224 of the PHSA. 
This fund now exists to pay judgments against CHC employees and 
officers. It is subject to appropriations and is made up of 
transfers of appropriations made for CHCs. This provision 
requires that the Secretary transfer money needed to satisfy 
these newly added professionals as well. This section also 
requires an annual report from the Attorney General, in 
consultation with the Secretary, estimating the costs of this 
provision.
    The effective date of this provision is to be October 1, 
2011.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

PUBLIC HEALTH SERVICE ACT

           *       *       *       *       *       *       *


         TITLE II--ADMINISTRATION AND MISCELLANEOUS PROVISIONS

Part A--Administration

           *       *       *       *       *       *       *


          DEFENSE OF CERTAIN MALPRACTICE AND NEGLIGENCE SUITS

  Sec. 224. (a) * * *

           *       *       *       *       *       *       *

  (q)(1) For purposes of this section, a health professional 
volunteer at an entity described in subsection (g)(4) shall, in 
providing a health professional service eligible for funding 
under section 330 to an individual, be deemed to be an employee 
of the Public Health Service for a calendar year that begins 
during a fiscal year for which a transfer was made under 
paragraph (4)(C). The preceding sentence is subject to the 
provisions of this subsection.
  (2) In providing a health service to an individual, a health 
care practitioner shall for purposes of this subsection be 
considered to be a health professional volunteer at an entity 
described in subsection (g)(4) if the following conditions are 
met:
          (A) The service is provided to the individual at the 
        facilities of an entity described in subsection (g)(4), 
        or through offsite programs or events carried out by 
        the entity.
          (B) The entity is sponsoring the health care 
        practitioner pursuant to paragraph (3)(B).
          (C) The health care practitioner does not receive any 
        compensation for the service from the individual or 
        from any third-party payer (including reimbursement 
        under any insurance policy or health plan, or under any 
        Federal or State health benefits program), except that 
        the health care practitioner may receive repayment from 
        the entity described in subsection (g)(4) for 
        reasonable expenses incurred by the health care 
        practitioner in the provision of the service to the 
        individual.
          (D) Before the service is provided, the health care 
        practitioner or the entity described in subsection 
        (g)(4) posts a clear and conspicuous notice at the site 
        where the service is provided of the extent to which 
        the legal liability of the health care practitioner is 
        limited pursuant to this subsection.
          (E) At the time the service is provided, the health 
        care practitioner is licensed or certified in 
        accordance with applicable law regarding the provision 
        of the service.
  (3) Subsection (g) (other than paragraphs (3) and (5)) and 
subsections (h), (i), and (l) apply to a health care 
practitioner for purposes of this subsection to the same extent 
and in the same manner as such subsections apply to an officer, 
governing board member, employee, or contractor of an entity 
described in subsection (g)(4), subject to paragraph (4) and 
subject to the following:
          (A) The first sentence of paragraph (1) applies in 
        lieu of the first sentence of subsection (g)(1)(A).
          (B) With respect to an entity described in subsection 
        (g)(4), a health care practitioner is not a health 
        professional volunteer at such entity unless the entity 
        sponsors the health care practitioner. For purposes of 
        this subsection, the entity shall be considered to be 
        sponsoring the health care practitioner if--
                  (i) with respect to the health care 
                practitioner, the entity submits to the 
                Secretary an application meeting the 
                requirements of subsection (g)(1)(D); and
                  (ii) the Secretary, pursuant to subsection 
                (g)(1)(E), determines that the health care 
                practitioner is deemed to be an employee of the 
                Public Health Service.
          (C) In the case of a health care practitioner who is 
        determined by the Secretary pursuant to subsection 
        (g)(1)(E) to be a health professional volunteer at such 
        entity, this subsection applies to the health care 
        practitioner (with respect to services performed on 
        behalf of the entity sponsoring the health care 
        practitioner pursuant to subparagraph (B)) for any 
        cause of action arising from an act or omission of the 
        health care practitioner occurring on or after the date 
        on which the Secretary makes such determination.
          (D) Subsection (g)(1)(F) applies to a health care 
        practitioner for purposes of this subsection only to 
        the extent that, in providing health services to an 
        individual, each of the conditions specified in 
        paragraph (2) is met.
  (4)(A) Amounts in the fund established under subsection 
(k)(2) shall be available for transfer under subparagraph (C) 
for purposes of carrying out this subsection.
  (B) Not later May 1 of each fiscal year, the Attorney 
General, in consultation with the Secretary, shall submit to 
the Congress a report providing an estimate of the amount of 
claims (together with related fees and expenses of witnesses) 
that, by reason of the acts or omissions of health professional 
volunteers, will be paid pursuant to this section during the 
calendar year that begins in the following fiscal year. 
Subsection (k)(1)(B) applies to the estimate under the 
preceding sentence regarding health professional volunteers to 
the same extent and in the same manner as such subsection 
applies to the estimate under such subsection regarding 
officers, governing board members, employees, and contractors 
of entities described in subsection (g)(4).
  (C) Not later than December 31 of each fiscal year, the 
Secretary shall transfer from the fund under subsection (k)(2) 
to the appropriate accounts in the Treasury an amount equal to 
the estimate made under subparagraph (B) for the calendar year 
beginning in such fiscal year, subject to the extent of amounts 
in the fund.
  (5)(A) This subsection takes effect on October 1, 2011, 
except as provided in subparagraph (B).
  (B) Effective on the date of the enactment of this 
subsection--
          (i) the Secretary may issue regulations for carrying 
        out this subsection, and the Secretary may accept and 
        consider applications submitted pursuant to paragraph 
        (3)(B); and
          (ii) reports under paragraph (4)(B) may be submitted 
        to the Congress.

           *       *       *       *       *       *       *


                                  
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