II 

109TH CONGRESS 

2D SESSION S. 2750 

To improve access to emergency medical services through medical liability 

reform and additional Medicare payments. 

IN THE SENATE OF THE UNITED STATES 

MAY 4, 2006 

Mr. DEMINT introduced the following bill; which was read twice and referred 

to the Committee on Finance 

A BILL 

To improve access to emergency medical services through 

medical liability reform and additional Medicare payments. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Access to Emergency 

5 Medical Services Act of 2006’’. 

6 SEC. 2. FINDINGS. 

7 The Congress finds as follows: 

8 (1) Emergency medical care is an essential ele9 ment of the health care safety net. 


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1 (2) Emergency departments are critical in ad2 dressing public health issues such as emerging and 

3 reemerging infections diseases, bioterrorism, and 

4 mass casualty incidences. 

5 (3) The Emergency Medical Treatment and 

6 Labor Act (‘‘EMTALA’’) requires that all patients 

7 who come to an emergency department be evaluated 

8 and their emergency medical conditions be stabilized, 

9 regardless of the patient’s ability to pay. 

10 (4) The emergency department is a critical site 

11 of service for indigent patients who otherwise do not 

12 have access to health care services. 

13 (5) Estimates indicate that 45,000,000 Ameri14 cans lack health coverage of any kind for an entire 

15 year and that tens of millions more Americans go 

16 without health coverage for shorter periods of time. 

17 (6) Nationally, more than 35 percent of emer18 gency department patients are uninsured or are 

19 Medicaid or SCHIP enrollees. 

20 (7) As a key part of the health care safety net, 

21 emergency departments in many of the Nation’s 

22 communities are under strain. 

23 (8) Strain on emergency departments is due to 

24 multiple factors, including the shortage of nurses, a 

25 decrease in the total number of community hospitals, 


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1 and high levels of bad debt incurred as a result of 

2 providing care to indigent patients. 

3 (9) Current trends indicate that maintaining 

4 access to high-quality emergency care across the na5 tion is at risk. 

6 (10) Sufficient resources must be allocated to 

7 emergency care providers to ensure that every Amer8 ican has access to high-quality emergency care. 

9 (11) The Medicare program provides dispropor10 tionate share payments for inpatient services to hos11 pitals that serve a disproportionate number of low 

12 income and indigent patients. 

13 (12) Providing additional payments for care 

14 provided in an emergency department is critical in 

15 ensuring beneficiaries have access to high quality 

16 emergency services and specialist care in an emer17 gency department. 

18 TITLE I—MEDICAL LIABILITY 

19 REFORMS 

20 SEC. 101. CONSTITUTIONAL AUTHORITY. 

21 The constitutional authority upon which this title 

22 rests is the power of the Congress to provide for the gen23 eral welfare, to regulate commerce, and to make all laws 

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1 cution Federal powers, as enumerated in section 8 of arti2 cle I of the Constitution of the United States. 

3 SEC. 102. PROTECTION AGAINST LEGAL LIABILITY FOR 

4 EMERGENCY AND RELATED SERVICES FUR5 NISHED TO UNINSURED INDIVIDUALS. 

6 Section 224(g) of the Public Health Service Act (42 

7 U.S.C. 233(g)) is amended— 

8 (1) in paragraph (4), by striking ‘‘An entity’’ 

9 and inserting in lieu thereof ‘‘Subject to paragraph 

10 (6), an entity’’; and 

11 (2) by adding at the end the following: 

12 ‘‘(6)(A) For purposes of this section— 

13 ‘‘(i) an entity described in subparagraph (B) 

14 shall be considered to be an entity described in para15 graph (4); and 

16 ‘‘(ii) the provisions of this section shall apply to 

17 an entity described in subparagraph (B) in the same 

18 manner as such provisions apply to an entity de19 scribed in paragraph (4), except that— 

20 ‘‘(I) notwithstanding paragraph (1)(A), the 

21 Secretary may deem a physician who is an on22 call physician (as defined in subparagraph (D)) 

23 of an entity described in subparagraph (B)(i) to 

24 be an employee of the Public Health Service for 

25 purposes of this section if the physician proVerDate Aug 31 2005 19:08 May 07, 2006 Jkt 049200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2750.IS S2750

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1 vides services described in subclause (II) for the 

2 entity pursuant to an arrangement other than 

3 under a contract with the entity; 

4 ‘‘(II) notwithstanding paragraph (1)(B), 

5 the deeming of any entity described in subpara6 graph (B), or of an officer, governing board 

7 member, employee, contractor, or on-call physi8 cian of such an entity, to be an employee of the 

9 Public Health Service for purposes of this sec10 tion shall apply only with respect to items and 

11 services that are furnished to an uninsured in12 dividual (as defined in subparagraph (C)) pur13 suant to section 1867 of the Social Security Act 

14 and to post-stabilization services (as defined in 

15 subparagraph (E)) furnished to such an indi16 vidual; 

17 ‘‘(III) nothing in paragraph (1)(D) shall 

18 be construed as preventing a physician or physi19 cian group described in subparagraph (B)(ii) 

20 from making the application referred to in such 

21 paragraph or as conditioning the deeming of a 

22 physician or physician group that makes such 

23 an application upon receipt by the Secretary of 

24 an application from the hospital or emergency 

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1 cian group provides services described in sub2 clause (II); 

3 ‘‘(IV) notwithstanding paragraph (3), this 

4 paragraph shall apply only with respect to 

5 causes of action arising from acts or omissions 

6 that occur on or after January 1, 2005; 

7 ‘‘(V) paragraph (5) shall not apply to a 

8 physician or physician group described in sub9 paragraph (B)(ii); 

10 ‘‘(VI) the Attorney General, in consultation 

11 with the Secretary, shall make separate esti12 mates under subsection (k)(1) with respect to 

13 entities described in subparagraph (B) and enti14 ties described in paragraph (4) (other than 

15 those described in subparagraph (B)), and the 

16 Secretary shall establish separate funds under 

17 subsection (k)(2) with respect to such groups of 

18 entities, and any appropriations under this sub19 section for entities described in subparagraph 

20 (B) shall be separate from the amounts author21 ized by subsection (k)(2); 

22 ‘‘(VII) notwithstanding subsection (k)(2), 

23 the amount of the fund established by the Sec24 retary under such subsection with respect to en25 tities described in subparagraph (B) may exVerDate Aug 31 2005 19:08 May 07, 2006 Jkt 049200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2750.IS S2750

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1 ceed a total of $10,000,000 for a fiscal year; 

2 and 

3 ‘‘(VIII) subsection (m) shall not apply to 

4 entities described in subparagraph (B). 

5 ‘‘(B) An entity described in this subparagraph is— 

6 ‘‘(i) a hospital or an emergency department to 

7 which section 1867 of the Social Security Act ap8 plies; and 

9 ‘‘(ii) a physician or physician group that pro10 vides services described in subparagraph (A)(ii)(II) 

11 for such hospital or department. 

12 ‘‘(C) For purposes of this paragraph, the term ‘unin13 sured individual’ means an individual who, at the time 

14 treatment is provided by an entity described in subpara15 graph (B) for purposes of complying with section 1867 

16 of the Social Security Act— 

17 ‘‘(i) does not have coverage under— 

18 ‘‘(I) a group health plan (as defined in sec19 tion 2791(a)(1)); 

20 ‘‘(II) part A, B, or (C) of title XVIII of 

21 the Social Security Act; or 

22 ‘‘(III) a State plan under title XIX of such 

23 Act; and 


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1 ‘‘(ii) does not have health insurance coverage 

2 (as defined in section 2791(b)(1)) from any other 

3 source. 

4 ‘‘(D) For purposes of this paragraph, the term ‘on5 call physician’ means a physician who is on the list of phy6 sicians that is maintained by an entity described in sub7 paragraph (B)(i) pursuant to section 1866(a)(1)(I) of the 

8 Social Security Act. 

9 ‘‘(E) For purposes of this paragraph, the term ‘post10 stabilization services’ means, with respect to an individual 

11 who has been treated by an entity described in subpara12 graph (B) for purposes of complying with section 1867 

13 of the Social Security Act, services that are— 

14 ‘‘(i) related to the condition that was so treated; 

15 and 

16 ‘‘(ii) provided after the individual is stabilized 

17 in order to maintain the stabilized condition or to 

18 improve or resolve the individual’s condition. 

19 ‘‘(F)(i) Nothing in this paragraph (or in any other 

20 provision of this section as such provision applies to enti21 ties described in subparagraph (B) by operation of sub22 paragraph (A)) shall be construed as authorizing or re23 quiring the Secretary to make payments to such entities, 

24 the budget authority for which is not provided in advance 

25 by appropriation Acts. 


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1 ‘‘(ii) The Secretary shall limit the total amount of 

2 payments under this paragraph for a fiscal year to the 

3 total amount appropriated in advance by appropriation 

4 Acts for such purpose for such fiscal year. If the total 

5 amount of payments that would otherwise be made under 

6 this paragraph for a fiscal year exceeds such total amount 

7 appropriated, the Secretary shall take such steps as may 

8 be necessary to ensure that the total amount of payments 

9 under this paragraph for such fiscal year does not exceed 

10 such total amount appropriated. 

11 ‘‘(F) The Secretary may deem a physician who is an 

12 on-call physician of an entity described in subparagraph 

13 (B) as an employee of the Public Health Service for pur14 poses of this section, if the physician was providing items 

15 or services described in subparagraph (D) for the entity 

16 pursuant to an arrangement other than a contract with 

17 the entity.’’. 


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1 TITLE II—ADDITIONAL 

2 MEDICARE PAYMENT 

3 SEC. 201. ADDITIONAL PAYMENTS FOR PHYSICIANS’ SERV4 ICES FURNISHED IN AN EMERGENCY DE5 PARTMENT OF A HOSPITAL OR CRITICAL AC6 CESS HOSPITAL. 

7 Section 1833 of the Social Security Act (42 U.S.C. 

8 1395l) is amended by adding at the end the following new 

9 subsection: 

10 ‘‘(v) ADDITIONAL PAYMENTS FOR PHYSICIANS’ 

11 SERVICES FURNISHED IN EMERGENCY DEPARTMENTS.— 

12 In the case of physicians’ services furnished on or after 

13 January 1, 2006, in the emergency department of a hos14 pital or critical access hospital to an individual covered 

15 under the insurance program established by this part, in 

16 addition to the amount of payment that will otherwise be 

17 made for such services under this part, there shall also 

18 be paid to the physician or other person (or to an employer 

19 or other entity in the cases described in clause (A) of sec20 tion 1842(b)(6)) from the Federal Supplementary Insur21 ance Trust Fund an amount equal to 10 percent of the 

22 payment amount for the service under this part.’’. 


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1 SEC. 202. INCENTIVE PAYMENTS FOR HOSPITALS MEETING 

2 STANDARDS FOR PROMPT ADMISSIONS OF 

3 EMERGENCY DEPARTMENT PATIENTS RE4 QUIRING INPATIENT HOSPITAL SERVICES. 

5 (a) IN GENERAL.— 

6 (1) INCENTIVE PAYMENTS.—Section 1833(t) of 

7 the Social Security Act (42 U.S.C. 1395l(t)) is 

8 amended by adding at the end the following: 

9 ‘‘(15) INCENTIVE PAYMENTS FOR PROMPT AD10 MISSIONS OF CERTAIN EMERGENCY DEPARTMENT

11 PATIENTS.— 

12 ‘‘(A) IN GENERAL.— 

13 ‘‘(i) ADDITIONAL PAYMENT.—Subject 

14 to subparagraph (C)(i), in the case of 

15 emergency department visits furnished in a 

16 calendar quarter beginning on or after 

17 January 1, 2007, by a hospital that has 

18 transmitted a certification pursuant to 

19 clause (ii) for such quarter there shall be 

20 paid to the hospital for such visits an 

21 amount equal to— 

22 ‘‘(I) 10 percent of the amount 

23 otherwise payable under this sub24 section for such visits (which shall be 

25 in addition to such payment amount); 

26 or 


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1 ‘‘(II) in the case of visits for 

2 which payment may not be made 

3 under this subsection by reason of the 

4 bundling requirements of section 

5 1886(a)(4), 10 percent of the amount 

6 that would have been paid for such 

7 visits but for the admission of the pa8 tient involved for inpatient hospital 

9 services. 

10 ‘‘(ii) CERTIFICATION PROCESS.—In 

11 order to qualify for additional payments 

12 under this paragraph for a quarter, a hos13 pital shall transmit to the Secretary (at 

14 such time before the beginning of such 

15 quarter as the Secretary may require) a 

16 certification that, for second preceding 

17 quarter, the hospital met the standards es18 tablished under subparagraph (B). 

19 ‘‘(iii) EMERGENCY DEPARTMENT VIS20 ITS.—For purposes of this paragraph, the 

21 term ‘emergency department visits’ means 

22 ambulatory patient classification groups 

23 0600, 0601, 0602, 0610, 0611, 0612, and 

24 0620 (and any successor groups as deter25 mined by the Secretary). 


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1 ‘‘(B) STANDARDS FOR PROMPT ADMIS2 SIONS.— 

3 ‘‘(i) TIMING.—Not later than June 

4 30, 2006, the Secretary shall promulgate 

5 final regulations (after notice and an op6 portunity for public comment) establishing 

7 standards for prompt admission by a hos8 pital of those individuals presenting to the 

9 emergency department of the hospital who 

10 are determined at the time an emergency 

11 department visit to require inpatient hos12 pital services at the hospital (hereafter in 

13 this paragraph referred to as ‘emergency 

14 department patients requiring admission’ 

15 or ‘such patients’). 

16 ‘‘(ii) REQUIREMENTS.—The standards 

17 under clause (i) shall— 

18 ‘‘(I) be designed to substantially 

19 reduce or eliminate overcrowding and 

20 boarding of patients in such depart21 ments and in other outpatient setting 

22 adjacent to such departments; 

23 ‘‘(II) be expressed as an average 

24 of the time elapsed between the deci25 sion to admit such patients and the 


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1 arrival of such patients at their defini2 tive destination in the hospital (and 

3 not in an area outside the emergency 

4 department for holding such patients 

5 before arrival at such definitive des6 tination); 

7 ‘‘(III) be applied on a rolling 

8 quarterly basis (consistent with the 

9 certification process under subpara10 graph (A)(ii)); 

11 ‘‘(IV) provide that a hospital may 

12 not, for purposes of compliance with 

13 such standards, treat as an admission 

14 a patient who is deemed to be admit15 ted under this title by reason of being 

16 present in the hospital for two con17 secutive midnight patient censuses; 

18 ‘‘(V) provide for exceptions for 

19 extraordinary circumstances involving 

20 mass casualties; 

21 ‘‘(VI) apply to calendar quarters 

22 beginning on or after July 1, 2006, 

23 for purposes of determining eligibility 

24 for additional payments under this 

25 paragraph and to calendar quarters 


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1 beginning on or after January 1, 

2 2007, for purposes of imposing civil 

3 money penalties under paragraphs (8) 

4 and (9) of section 1128A(a); and 

5 ‘‘(VII) be revised from time to 

6 time if the Secretary determines that 

7 further reductions in such over8 crowding and boarding are necessary. 

9 ‘‘(C) TREATMENT OF ADDITIONAL PAY10 MENTS.—The additional payments under this 

11 paragraph— 

12 ‘‘(i) shall be treated as conditional 

13 payments that the Secretary may recover 

14 through recoupment, offset, or other 

15 means (in accordance with procedures and 

16 requirements applicable to overpayments 

17 under this title) if a hospital is found, 

18 upon audit under subparagraph (D)(i), not 

19 to meet such standards for a quarter to 

20 which a certification relates; 

21 ‘‘(ii) shall not be taken into account in 

22 determining— 

23 ‘‘(I) the copayment for which an 

24 individual enrolled under this part is 

25 liable under this subsection; or 


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1 ‘‘(II) any adjustment under sub2 paragraph (A) or (B) of paragraph 

3 (9); and 

4 ‘‘(iii) shall not be treated as an ad5 justment under paragraph (2)(E). 

6 ‘‘(D) AUDITS OF CERTIFICATIONS; INVES7 TIGATION OF COMPLAINTS.—The Secretary 

8 shall establish a process under which— 

9 ‘‘(i) the Secretary, an agency with 

10 which the Secretary has an agreement 

11 under section 1864, or a national accred12 iting body for the accreditation of hospitals 

13 that is recognized under section 1865 con14 ducts periodic audits of certifications made 

15 by a hospital to determine whether such 

16 hospital met the standards established 

17 under subparagraph (B) for the quarter to 

18 which a certification relates; and 

19 ‘‘(ii) the Secretary or an agency with 

20 which the Secretary has an agreement 

21 under section 1864— 

22 ‘‘(I) investigates complaints that 

23 a hospital has engaged in a pattern or 

24 practice of failing to comply with such 

25 standards; and 


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1 ‘‘(II) investigates any hospital 

2 that has failed to certify under sub3 paragraph (A)(ii) its compliance with 

4 such standards for three consecutive 

5 calendar quarters to determine wheth6 er such hospital has engaged on a 

7 pattern or practice of failing to com8 ply with such standards (and for pur9 poses of this subclause, any certifi10 cation that is determined by an audit 

11 under clause (i) to be false shall be 

12 treated as a failure to certify for the 

13 quarter involved). 

14 Notwithstanding any other provision of 

15 law, the identity of any person filing a 

16 complaint under subclause (I) shall not be 

17 disclosed unless the Secretary determines 

18 that such complaint was filed in bad 

19 faith.’’. 

20 (2) GAO REPORT.—Not later than 12 months 

21 after the Secretary publishes a final rule establishing 

22 or revising standards under subparagraph (B) of 

23 section 1833(t)(15) of the Social Security Act (42 

24 U.S.C. 1395l(t)(15)), as added by paragraph (1), 

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1 mittee on Finance of the Senate and the Committees 

2 on Ways and Means and Energy and Commerce of 

3 the House of Representatives a report that— 

4 (A) evaluates whether such standards will 

5 achieve the objectives specified in such subpara6 graph; and 

7 (B) makes recommendations for any 

8 changes to such standards that are necessary to 

9 achieve such objectives. 

10 (b) CIVIL MONEY PENALTIES FOR PATTERN OR

11 PRACTICE OF VIOLATING STANDARDS.—Section 

12 1128A(a) of the Social Security Act (42 U.S.C. 1320a– 

13 7a(a)) is amended— 

14 (1) by striking ‘‘or’’ at the end of paragraph 

15 (6); 

16 (2) by inserting after paragraph (7) the fol17 lowing: 

18 ‘‘(8) makes a false certification under section 

19 1833(t)(15)(A)(ii); or 

20 ‘‘(9) engages in a pattern or practice of failing 

21 to meet the standards established under 

22 1833(t)(15)(B);’’; and 

23 (3) in the matter after and below paragraph (9) 

24 (as added by paragraph (2) of this subsection), by 

25 inserting after ‘‘prohibited relationship occurs;’’ the 


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1 following: ‘‘in cases under paragraph (8), an amount 

2 not to exceed three times the amount of additional 

3 payments under section 1833(t)(15) that are attrib4 utable to the false certification; in cases under para5 graph (9), an amount not to exceed $250,000 for 

6 each quarter in which such pattern or practice is 

7 found to exist;’’. 

Æ 


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