[House Report 112-416]
[From the U.S. Government Publishing Office]


112th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     112-416

======================================================================

 
  PROVIDING FOR CONSIDERATION OF THE BILL (H.R. 5) TO IMPROVE PATIENT 
  ACCESS TO HEALTH CARE SERVICES AND PROVIDE IMPROVED MEDICAL CARE BY 
REDUCING THE EXCESSIVE BURDEN THE LIABILITY SYSTEM PLACES ON THE HEALTH 
                          CARE DELIVERY SYSTEM

                                _______
                                

   March 20, 2012.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

    Mr. Nugent, from the Committee on Rules, submitted the following

                              R E P O R T

                       [To accompany H. Res. 591]

    The Committee on Rules, having had under consideration 
House Resolution 591, by a record vote of 7-4, report the same 
to the House with the recommendation that the resolution be 
adopted.

                SUMMARY OF PROVISIONS OF THE RESOLUTION

    The resolution provides for consideration of H.R. 5, the 
Help Efficient, Accessible, Low-cost, Timely Healthcare 
(HEALTH) Act of 2011, under a structured rule. The resolution 
provides six hours of general debate equally divided among and 
controlled by the respective chairs and ranking minority 
members of the Committees on Energy and Commerce, the 
Judiciary, and Ways and Means. The resolution waives all points 
of order against consideration of the bill. The resolution 
provides that an amendment in the nature of a substitute 
consisting of the text of Rules Committee Print 112-18 shall be 
considered as adopted and the bill, as amended, shall be 
considered as original text for the purpose of amendment and 
shall be considered as read. The resolution waives all points 
of order against provisions in the bill, as amended. The 
resolution makes in order only those further amendments printed 
in this report. Each such amendment may be offered only in the 
order printed in this report, may be offered only by a Member 
designated in this report, shall be considered as read, shall 
be debatable for the time specified in this report equally 
divided and controlled by the proponent and an opponent, shall 
not be subject to amendment, and shall not be subject to a 
demand for division of the question in the House or in the 
Committee of the Whole. The resolution waives all points of 
order against the amendments printed in this report. Finally, 
the resolution provides one motion to recommit with or without 
instructions.

                         EXPLANATION OF WAIVERS

    The waiver of all points of order against consideration of 
the bill includes a waiver of Section 303(a) of the 
Congressional Budget Act, prohibiting consideration of 
legislation, as reported, providing new budget authority, 
change in revenues, change in public debt, new entitlement 
authority, or new credit authority for a fiscal year until the 
budget resolution for that year has been agreed to, and clause 
3(c)(1) of rule XIII, requiring the inclusion of oversight 
findings in a committee report.
    Although the resolution waives all points of order against 
provisions in the bill, as amended, the Committee is not aware 
of any points of order. The waiver is prophylactic in nature.
    Although the resolution waives all points of order against 
the amendments printed in this report, the Committee is not 
aware of any points of order. The waiver is prophylactic in 
nature.

                            COMMITTEE VOTES

    The results of each record vote on an amendment or motion 
to report, together with the names of those voting for and 
against, are printed below:

Rules Committee record vote No. 198

    Motion by Ms. Slaughter to report an open rule. Defeated: 
4-6.

----------------------------------------------------------------------------------------------------------------
                Majority Members                      Vote               Minority Members               Vote
----------------------------------------------------------------------------------------------------------------
Ms. Foxx........................................          Nay   Ms. Slaughter.....................          Yea
Mr. Bishop of Utah..............................          Nay   Mr. McGovern......................          Yea
Mr. Nugent......................................          Nay   Mr. Hastings of Florida...........          Yea
Mr. Scott of South Carolina.....................          Nay   Mr. Polis.........................          Yea
Mr. Webster.....................................          Nay
Mr. Dreier, Chairman............................          Nay
----------------------------------------------------------------------------------------------------------------

Rules Committee record vote No. 199

    Motion by Mr. Hastings of Florida to make in order and 
provide the appropriate waivers for amendment #6 offered by 
Rep. Johnson (GA) and Rep. Braley (IA), which would specify 
that nothing in the bill shall preempt any applicable State 
constitutional provision; and amendment #7 offered by Rep. Poe 
(TX), which would prevent the provisions of H.R. 5 from 
preempting any State law that is in effect on the date of 
enactment of the bill. Defeated: 4-7.

----------------------------------------------------------------------------------------------------------------
                Majority Members                      Vote               Minority Members               Vote
----------------------------------------------------------------------------------------------------------------
Ms. Foxx........................................          Nay    Ms. Slaughter....................          Yea
Mr. Bishop of Utah..............................          Nay    Mr. McGovern.....................          Yea
Mr. Woodall.....................................          Nay    Mr. Hastings of Florida..........          Yea
Mr. Nugent......................................          Nay    Mr. Polis........................          Yea
Mr. Scott of South Carolina.....................          Nay
Mr. Webster.....................................          Nay
Mr. Dreier, Chairman............................          Nay
----------------------------------------------------------------------------------------------------------------

Rules Committee record vote No. 200

    Motion by Ms. Slaughter to make in order and provide the 
appropriate waivers for amendment #19 offered by Rep. DeGette 
(CO), which would deny the protections from a health care 
liability claim against a health care organization in the 
underlying bill to the extent such claim is based on an act or 
omission constituting a violation of the Patient Protection and 
Affordable Care Act. Defeated: 4-7.

----------------------------------------------------------------------------------------------------------------
                Majority Members                      Vote               Minority Members               Vote
----------------------------------------------------------------------------------------------------------------
Ms. Foxx........................................          Nay    Ms. Slaughter....................          Yea
Mr. Bishop of Utah..............................          Nay    Mr. McGovern.....................          Yea
Mr. Woodall.....................................          Nay    Mr. Hastings of Florida..........          Yea
Mr. Nugent......................................          Nay    Mr. Polis........................          Yea
Mr. Scott of South Carolina.....................          Nay
Mr. Webster.....................................          Nay
Mr. Dreier, Chairman............................          Nay
----------------------------------------------------------------------------------------------------------------

Rules Committee record vote No. 201

    Motion by Ms. Foxx to report the rule. Adopted: 7-4.

----------------------------------------------------------------------------------------------------------------
                Majority Members                      Vote               Minority Members               Vote
----------------------------------------------------------------------------------------------------------------
Ms. Foxx........................................          Yea    Ms. Slaughter....................          Nay
Mr. Bishop of Utah..............................          Yea    Mr. McGovern.....................          Nay
Mr. Woodall.....................................          Yea    Mr. Hastings of Florida..........          Nay
Mr. Nugent......................................          Yea    Mr. Polis........................          Nay
Mr. Scott of South Carolina.....................          Yea
Mr. Webster.....................................          Yea
Mr. Dreier, Chairman............................          Yea
----------------------------------------------------------------------------------------------------------------

                SUMMARY OF THE AMENDMENTS MADE IN ORDER

    1. Woodall (GA): Would strike the findings in Title I. (10 
minutes)
    2. Bonamici (OR): Would delay date of enactment until 
Secretary of Health and Human Services submits to Congress a 
report on the potential effect of this title on health care 
premiums. (10 minutes)
    3. Hastings, Alcee (FL): Would strike Title II (Repeal of 
the Independent Payment Advisory Board). (10 minutes)
    4. Dent (PA), Sessions (TX): Would address the crisis in 
access to emergency care by extending liability coverage to on-
call and emergency room physicians under the Public Health 
Service Act. (10 minutes)
    5. Gosar (AZ): Would restore the application of antitrust 
laws to the business of health insurance by amending the 
McCarran-Ferguson Act. (10 minutes)
    6. Stearns (FL), Matheson (UT): Would grant limited civil 
liability protection to health professionals that volunteer at 
federally declared disaster sites. (10 minutes)

                    TEXT OF AMENDMENTS MADE IN ORDER

 1. An Amendment To Be Offered by Representative Woodall of Georgia or 
                 His Designee, Debatable for 10 Minutes

  Page 1, strike line 9 through page 3, line 8 and insert the 
following:

SEC. 102. PURPOSE.

  It is the purpose of this title to implement reasonable, 
comprehensive, and effective health care liability reforms 
designed to--
                              ----------                              


 2. An Amendment To Be Offered by Representative Bonamici of Oregon or 
                 Her Designee, Debatable for 10 Minutes

  Page 23, line 22, strike ``date of enactment'' and insert 
``effective date''.
  Page 23, line 24, strike ``date of enactment'' and insert 
``effective date''.
  Page 24, line 2, insert after ``the injury occurred'' the 
following: ``This title shall take effect only on the date the 
Secretary of Health and Human Services submits to Congress a 
report on the potential effect of this title on health care 
premium reductions.''.
                              ----------                              


3. An Amendment To Be Offered by Representative Hastings of Florida or 
                 His Designee, Debatable for 10 Minutes

  Page 24, strike line 3 and all that follows through the end 
of the bill.
                              ----------                              


4. An Amendment To Be Offered by Representative Dent of Pennsylvania or 
                 His Designee, Debatable for 10 Minutes

  At the end of the bill, insert the following:

             TITLE III--HEALTH CARE SAFETY NET ENHANCEMENT

SEC. 301. SHORT TITLE.

  This title may be cited as the ``Health Care Safety Net 
Enhancement Act of 2012''.

SEC. 302. PROTECTION FOR EMERGENCY AND RELATED SERVICES FURNISHED 
                    PURSUANT TO EMTALA.

  Section 224(g) of the Public Health Service Act (42 U.S.C. 
233(g)) is amended--
          (1) in paragraph (4), by striking ``An entity'' and 
        inserting ``Subject to paragraph (6), an entity''; and
          (2) by adding at the end the following:
          ``(6)(A) For purposes of this section--
                  ``(i) an entity described in subparagraph (B) 
                shall be considered to be an entity described 
                in paragraph (4); and
                  ``(ii) the provisions of this section shall 
                apply to an entity described in subparagraph 
                (B) in the same manner as such provisions apply 
                to an entity described in paragraph (4), except 
                that--
                          ``(I) notwithstanding paragraph 
                        (1)(B), the deeming of any entity 
                        described in subparagraph (B), or of an 
                        officer, governing board member, 
                        employee, contractor, or on-call 
                        provider of such an entity, to be an 
                        employee of the Public Health Service 
                        for purposes of this section shall 
                        apply only with respect to items and 
                        services that are furnished to an 
                        individual pursuant to section 1867 of 
                        the Social Security Act and to post 
                        stabilization services (as defined in 
                        subparagraph (D)) furnished to such an 
                        individual;
                          ``(II) nothing in paragraph (1)(D) 
                        shall be construed as preventing a 
                        physician or physician group described 
                        in subparagraph (B)(ii) from making the 
                        application referred to in such 
                        paragraph or as conditioning the 
                        deeming of a physician or physician 
                        group that makes such an application 
                        upon receipt by the Secretary of an 
                        application from the hospital or 
                        emergency department that employs or 
                        contracts with the physician or group, 
                        or enlists the physician or physician 
                        group as an on-call provider;
                          ``(III) notwithstanding paragraph 
                        (3), this paragraph shall apply only 
                        with respect to causes of action 
                        arising from acts or omissions that 
                        occur on or after January 1, 2012;
                          ``(IV) paragraph (5) shall not apply 
                        to a physician or physician group 
                        described in subparagraph (B)(ii);
                          ``(V) the Attorney General, in 
                        consultation with the Secretary, shall 
                        make separate estimates under 
                        subsection (k)(1) with respect to 
                        entities described in subparagraph (B) 
                        and entities described in paragraph (4) 
                        (other than those described in 
                        subparagraph (B)), and the Secretary 
                        shall establish separate funds under 
                        subsection (k)(2) with respect to such 
                        groups of entities, and any 
                        appropriations under this subsection 
                        for entities described in subparagraph 
                        (B) shall be separate from the amounts 
                        authorized by subsection (k)(2);
                          ``(VI) notwithstanding subsection 
                        (k)(2), the amount of the fund 
                        established by the Secretary under such 
                        subsection with respect to entities 
                        described in subparagraph (B) may 
                        exceed a total of $10,000,000 for a 
                        fiscal year; and
                          ``(VII) subsection (m) shall not 
                        apply to entities described in 
                        subparagraph (B).
          ``(B) An entity described in this subparagraph is--
                  ``(i) a hospital or an emergency department 
                to which section 1867 of the Social Security 
                Act applies; and
                  ``(ii) a physician or physician group that is 
                employed by, is under contract with, or is an 
                on-call provider of such hospital or emergency 
                department, to furnish items and services to 
                individuals under such section.
          ``(C) For purposes of this paragraph, the term `on-
        call provider' means a physician or physician group 
        that--
                  ``(i) has full, temporary, or locum tenens 
                staff privileges at a hospital or emergency 
                department to which section 1867 of the Social 
                Security Act applies; and
                  ``(ii) is not employed by or under contract 
                with such hospital or emergency department, but 
                agrees to be ready and available to provide 
                services pursuant to section 1867 of the Social 
                Security Act or post-stabilization services to 
                individuals being treated in the hospital or 
                emergency department with or without 
                compensation from the hospital or emergency 
                department.
          ``(D) For purposes of this paragraph, the term `post 
        stabilization services' means, with respect to an 
        individual who has been treated by an entity described 
        in subparagraph (B) for purposes of complying with 
        section 1867 of the Social Security Act, services that 
        are--
                  ``(i) related to the condition that was so 
                treated; and
                  ``(ii) provided after the individual is 
                stabilized in order to maintain the stabilized 
                condition or to improve or resolve the 
                condition of the individual.
          ``(E)(i) Nothing in this paragraph (or in any other 
        provision of this section as such provision applies to 
        entities described in subparagraph (B) by operation of 
        subparagraph (A)) shall be construed as authorizing or 
        requiring the Secretary to make payments to such 
        entities, the budget authority for which is not 
        provided in advance by appropriation Acts.
          ``(ii) The Secretary shall limit the total amount of 
        payments under this paragraph for a fiscal year to the 
        total amount appropriated in advance by appropriation 
        Acts for such purpose for such fiscal year. If the 
        total amount of payments that would otherwise be made 
        under this paragraph for a fiscal year exceeds such 
        total amount appropriated, the Secretary shall take 
        such steps as may be necessary to ensure that the total 
        amount of payments under this paragraph for such fiscal 
        year does not exceed such total amount appropriated.''.

SEC. 303. CONSTITUTIONAL AUTHORITY.

  The constitutional authority upon which this title rests is 
the power of the Congress to provide for the general welfare, 
to regulate commerce, and to make all laws which shall be 
necessary and proper for carrying into execution Federal 
powers, as enumerated in section 8 of article I of the 
Constitution of the United States.
                              ----------                              


5. An Amendment To Be Offered by Representative Gosar of Arizona or His 
                   Designee, Debatable for 10 Minutes

  At the end of the bill, add the following (and make such 
technical and conforming changes as may be appropriate):

TITLE III--RESTORING THE APPLICATION OF ANTITRUST LAWS TO HEALTH SECTOR 
                                INSURERS

SEC. 301. SHORT TITLE.

  This title may be cited as the ``Health Insurance Industry 
Fair Competition Act of 2012''.

SEC. 302. APPLICATION OF THE ANTITRUST LAWS TO THE BUSINESS OF HEALTH 
                    INSURANCE.

  (a) Amendment to McCarran-Ferguson Act.--Section 3 of the Act 
of March 9, 1945 (15 U.S.C. 1013), commonly known as the 
McCarran-Ferguson Act, is amended by adding at the end the 
following:
  ``(c) Nothing contained in this Act shall modify, impair, or 
supersede the operation of any of the antitrust laws with 
respect to the business of health insurance. For purposes of 
the preceding sentence, the term `antitrust laws' has the 
meaning given it in subsection (a) of the first section of the 
Clayton Act, except that such term includes section 5 of the 
Federal Trade Commission Act to the extent that such section 5 
applies to unfair methods of competition. For the purposes of 
this subsection, the term `business of health insurance' 
shall--
          ``(1) mean `health insurance coverage' offered by a 
        `health insurance issuer' as those terms are defined in 
        section 9001 of the Patient Protection and Affordable 
        Care Act, which incorporates by reference and utilizes 
        the definitions included in section 9832 of the 
        Internal Revenue Code (26 U.S.C. 9832); and
          ``(2) not include--
                  ``(A) life insurance and annuities;
                  ``(B) property or casualty insurance, 
                including but not limited to, automobile, 
                medical malpractice or workers' compensation 
                insurance; or
                  ``(C) any insurance or benefits defined as 
                `excepted benefits' under section 9832(c) of 
                the Internal Revenue Code (26 U.S.C. 9832(c)), 
                whether offered separately or in combination 
                with products described in subparagraph (A).''.
  (b) Related Provision.--For purposes of section 5 of the 
Federal Trade Commission Act (15 U.S.C. 45) to the extent such 
section applies to unfair methods of competition, section 3(c) 
of the McCarran-Ferguson Act shall apply with respect to the 
business of health insurance without regard to whether such 
business is carried on for profit, notwithstanding the 
definition of ``Corporation'' contained in section 4 of the 
Federal Trade Commission Act.
  (c) Limitation on Class Actions.--
          (1) Limitation.--No class action may be heard in a 
        Federal or State court on a claim against a person 
        engaged in the business of health insurance for a 
        violation of any of the antitrust laws (as defined in 
        section 3(c) of the Act of March 9, 1945 (15 U.S.C. 
        1013), commonly known as the McCarran-Ferguson Act).
          (2) Exemption.--Paragraph (1) shall not apply with 
        respect to any action commenced--
                  (A) by the United States or any State; or
                  (B) by a named claimant for an injury only to 
                itself.
                              ----------                              


 6. An Amendment To Be Offered by Representative Stearns of Florida or 
                 His Designee, Debatable for 10 Minutes

  At the end of the bill, add the following:

     TITLE III--PROTECTIONS FOR GOOD SAMARITAN HEALTH PROFESSIONALS

SEC. 301. SHORT TITLE.

  This title may be cited as the ``Good Samaritan Health 
Professionals Act of 2012''.

SEC. 302. LIMITATION ON LIABILITY FOR VOLUNTEER HEALTH CARE 
                    PROFESSIONALS.

  (a) In General.--Title II of the Public Health Service Act 
(42 U.S.C. 202 et seq.) is amended by inserting after section 
224 the following:

``SEC. 224A. LIMITATION ON LIABILITY FOR VOLUNTEER HEALTH CARE 
                    PROFESSIONALS.

  ``(a) Limitation on Liability.--Except as provided in 
subsection (b), a health care professional shall not be liable 
under Federal or State law for any harm caused by an act or 
omission of the professional if--
          ``(1) the professional is serving as a volunteer for 
        purposes of responding to a disaster; and
          ``(2) the act or omission occurs--
                  ``(A) during the period of the disaster, as 
                determined under the laws listed in subsection 
                (e)(1);
                  ``(B) in the health care professional's 
                capacity as such a volunteer; and
                  ``(C) in a good faith belief that the 
                individual being treated is in need of health 
                care services.
  ``(b) Exceptions.--Subsection (a) does not apply if--
          ``(1) the harm was caused by an act or omission 
        constituting willful or criminal misconduct, gross 
        negligence, reckless misconduct, or a conscious 
        flagrant indifference to the rights or safety of the 
        individual harmed by the health care professional; or
          ``(2) the health care professional rendered the 
        health care services under the influence (as determined 
        pursuant to applicable State law) of intoxicating 
        alcohol or an intoxicating drug.
  ``(c) Standard of Proof.--In any civil action or proceeding 
against a health care professional claiming that the limitation 
in subsection (a) applies, the plaintiff shall have the burden 
of proving by clear and convincing evidence the extent to which 
limitation does not apply.
  ``(d) Preemption.--
          ``(1) In general.--This section preempts the laws of 
        a State or any political subdivision of a State to the 
        extent that such laws are inconsistent with this 
        section, unless such laws provide greater protection 
        from liability.
          ``(2) Volunteer protection act.--Protections afforded 
        by this section are in addition to those provided by 
        the Volunteer Protection Act of 1997.
  ``(e) Definitions.--In this section:
          ``(1) The term `disaster' means--
                  ``(A) a national emergency declared by the 
                President under the National Emergencies Act;
                  ``(B) an emergency or major disaster declared 
                by the President under the Robert T. Stafford 
                Disaster Relief and Emergency Assistance Act; 
                or
                  ``(C) a public health emergency determined by 
                the Secretary under section 319 of this Act.
          ``(2) The term `harm' includes physical, nonphysical, 
        economic, and noneconomic losses.
          ``(3) The term `health care professional' means an 
        individual who is licensed, certified, or authorized in 
        one or more States to practice a health care 
        profession.
          ``(4) The term `State' includes each of the several 
        States, the District of Columbia, the Commonwealth of 
        Puerto Rico, the Virgin Islands, Guam, American Samoa, 
        the Northern Mariana Islands, and any other territory 
        or possession of the United States.
          ``(5)(A) The term `volunteer' means a health care 
        professional who, with respect to the health care 
        services rendered, does not receive--
                  ``(i) compensation; or
                  ``(ii) any other thing of value in lieu of 
                compensation, in excess of $500 per year.
          ``(B) For purposes of subparagraph (A), the term 
        `compensation'--
                  ``(i) includes payment under any insurance 
                policy or health plan, or under any Federal or 
                State health benefits program; and
                  ``(ii) excludes--
                          ``(I) reasonable reimbursement or 
                        allowance for expenses actually 
                        incurred;
                          ``(II) receipt of paid leave; and
                          ``(III) receipt of items to be used 
                        exclusively for rendering the health 
                        services in the health care 
                        professional's capacity as a volunteer 
                        described in subsection (a)(1).''.
  (b) Effective Date.--
          (1) In general.--This title and the amendment made by 
        subsection (a) shall take effect 90 days after the date 
        of the enactment of this title
          (2) Application.--This title applies to any claim for 
        harm caused by an act or omission of a health care 
        professional where the claim is filed on or after the 
        effective date of this title, but only if the harm that 
        is the subject of the claim or the conduct that caused 
        such harm occurred on or after such effective date.

                                  
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