[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.
* * * * * * *