[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.
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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.
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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.
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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.
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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.