I 

111TH CONGRESS 

1ST SESSION H. R. 1998 

To improve access to emergency medical services, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 21, 2009 

Mr. GORDON of Tennessee (for himself and Mr. DENT) introduced the 

following bill; which was referred to the Committee on Energy and Commerce 

A BILL 

To improve access to emergency medical services, and for 

other purposes. 

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 ‘‘Health Care Safety 

5 Net Enhancement Act of 2009’’. 

6 SEC. 2. FINDINGS. 

7 The Congress finds the following: 

8 (1) As noted in the 2006 Institute of Medicine 

9 report, ‘‘The Future of Emergency Care’’, the avail10 ability of on-call specialists is an acute problem in 

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1 ing attention to identified barriers such as liability 

2 reform. 

3 (2) Also acknowledged in the 2006 IOM report, 

4 emergency and trauma care is delivered in an inher5 ently challenging environment, often requiring emer6 gency physicians and trauma surgeons to make life7 and-death decisions with little time or information or 

8 without a standing relationship with the patient. For 

9 these reasons, physicians providing emergency and 

10 trauma care face extraordinary exposure to medical 

11 liability claims, which are far higher than for those 

12 physicians who do not provide such care. 

13 (3) Younger surgeons, who often take the on14 call shifts at trauma centers, are leaving States with 

15 the most severe liability problems. For example, ac16 cording to the Project on Medical Liability in Penn17 sylvania, funded by the Pew Charitable Trust, resi18 dent physicians in high-risk fields such as general 

19 surgery and emergency medicine named malpractice 

20 costs as the reason for leaving the State three times 

21 more often than any other factor. 

22 (4) Further, an American Hospital Association 

23 study found that more than 50 percent of hospitals 

24 in medical liability crisis States now have trouble re25 cruiting physicians, and 40 percent say the liability 


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1 situation has resulted in less physician coverage for 

2 their emergency departments. The crisis has even 

3 forced the closure of trauma centers in Florida, Mis4 sissippi, Nevada, Pennsylvania, and West Virginia at 

5 various times in recent years. 

6 (5) Specialties that have experienced particu7 larly high premium increases, including neuro8 surgery, orthopaedics, and general surgery, are also 

9 among those services that emergency patients most 

10 frequently require. 

11 (6) According to a report from the General Ac12 countability Office, soaring medical liability pre13 miums have led specialists to reduce or stop on-call 

14 services to hospital emergency departments, seri15 ously inhibiting patient access to emergency surgical 

16 services. 

17 (7) The Department of Health and Human 

18 Services’ congressionally created EMTALA technical 

19 advisory group (TAG) recognized that professional 

20 liability insurance is a concern for providers and 

21 that having protections would increase coverage in 

22 the emergency department. The TAG recommended 

23 that the Department of Health and Human Services 

24 act to support amending the EMTALA statute to in25 clude liability protection for hospitals, physicians, 


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1 and other licensed independent practitioners who 

2 provide services to patients covered by EMTALA. 

3 SEC. 3. CONSTITUTIONAL AUTHORITY. 

4 The constitutional authority upon which this Act 

5 rests is the power of the Congress to provide for the gen6 eral welfare, to regulate commerce, and to make all laws 

7 which shall be necessary and proper for carrying into exe8 cution Federal powers, as enumerated in section 8 of arti9 cle I of the Constitution of the United States. 

10 SEC. 4. PROTECTION FOR EMERGENCY AND RELATED 

11 SERVICES FURNISHED PURSUANT TO 

12 EMTALA. 

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

14 U.S.C. 233(g)) is amended— 

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

16 and inserting ‘‘Subject to paragraph (6), an entity’’; 

17 and 

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

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

20 ‘‘(i) an entity described in subparagraph 

21 (B) shall be considered to be an entity de22 scribed in paragraph (4); and 

23 ‘‘(ii) the provisions of this section shall 

24 apply to an entity described in subparagraph 

25 (B) in the same manner as such provisions 


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1 apply to an entity described in paragraph (4), 

2 except that— 

3 ‘‘(I) notwithstanding paragraph 

4 (1)(B), the deeming of any entity described 

5 in subparagraph (B), or of an officer, gov6 erning board member, employee, con7 tractor, or on-call provider of such an enti8 ty, to be an employee of the Public Health 

9 Service for purposes of this section shall 

10 apply only with respect to items and serv11 ices that are furnished to an individual 

12 pursuant to section 1867 of the Social Se13 curity Act and to post stabilization services 

14 (as defined in subparagraph (D)) furnished 

15 to such an individual; 

16 ‘‘(II) nothing in paragraph (1)(D) 

17 shall be construed as preventing a physi18 cian or physician group described in sub19 paragraph (B)(ii) from making the appli20 cation referred to in such paragraph or as 

21 conditioning the deeming of a physician or 

22 physician group that makes such an appli23 cation upon receipt by the Secretary of an 

24 application from the hospital or emergency 

25 department that employs or contracts with 


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1 the physician or group, or enlists the phy2 sician or physician group as an on-call pro3 vider; 

4 ‘‘(III) notwithstanding paragraph (3), 

5 this paragraph shall apply only with re6 spect to causes of action arising from acts 

7 or omissions that occur on or after Janu8 ary 1, 2010; 

9 ‘‘(IV) paragraph (5) shall not apply to 

10 a physician or physician group described in 

11 subparagraph (B)(ii); 

12 ‘‘(V) the Attorney General, in con13 sultation with the Secretary, shall make 

14 separate estimates under subsection (k)(1) 

15 with respect to entities described in sub16 paragraph (B) and entities described in 

17 paragraph (4) (other than those described 

18 in subparagraph (B)), and the Secretary 

19 shall establish separate funds under sub20 section (k)(2) with respect to such groups 

21 of entities, and any appropriations under 

22 this subsection for entities described in 

23 subparagraph (B) shall be separate from 

24 the amounts authorized by subsection 

25 (k)(2); 


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1 ‘‘(VI) notwithstanding subsection 

2 (k)(2), the amount of the fund established 

3 by the Secretary under such subsection 

4 with respect to entities described in sub5 paragraph (B) may exceed a total of 

6 $10,000,000 for a fiscal year; and 

7 ‘‘(VII) subsection (m) shall not apply 

8 to entities described in subparagraph (B). 

9 ‘‘(B) An entity described in this subparagraph 

10 is— 

11 ‘‘(i) a hospital or an emergency depart12 ment to which section 1867 of the Social Secu13 rity Act applies; and 

14 ‘‘(ii) a physician or physician group that is 

15 employed by, is under contract with, or is an 

16 on-call provider of such hospital or emergency 

17 department, to furnish items and services to in18 dividuals under such section. 

19 ‘‘(C) For purposes of this paragraph, the term 

20 ‘on-call provider’ means a physician or physician 

21 group that— 

22 ‘‘(i) has full, temporary, or locum tenens 

23 staff privileges at a hospital or emergency de24 partment to which section 1867 of the Social 

25 Security Act applies; and 


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1 ‘‘(ii) is not employed by or under contract 

2 with such hospital or emergency department, 

3 but agrees to be ready and available to provide 

4 services pursuant to section 1867 of the Social 

5 Security Act or post-stabilization services to in6 dividuals being treated in the hospital or emer7 gency department with or without compensation 

8 from the hospital or emergency department. 

9 ‘‘(D) For purposes of this paragraph, the term 

10 ‘post stabilization services’ means, with respect to an 

11 individual who has been treated by an entity de12 scribed in subparagraph (B) for purposes of com13 plying with section 1867 of the Social Security Act, 

14 services that are— 

15 ‘‘(i) related to the condition that was so 

16 treated; and 

17 ‘‘(ii) provided after the individual is sta18 bilized in order to maintain the stabilized condi19 tion or to improve or resolve the condition of 

20 the individual. 

21 ‘‘(E)(i) Nothing in this paragraph (or in any 

22 other provision of this section as such provision ap23 plies to entities described in subparagraph (B) by 

24 operation of subparagraph (A)) shall be construed as 

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1 ments to such entities, the budget authority for 

2 which is not provided in advance by appropriation 

3 Acts. 

4 ‘‘(ii) The Secretary shall limit the total amount 

5 of payments under this paragraph for a fiscal year 

6 to the total amount appropriated in advance by ap7 propriation Acts for such purpose for such fiscal 

8 year. If the total amount of payments that would 

9 otherwise be made under this paragraph for a fiscal 

10 year exceeds such total amount appropriated, the 

11 Secretary shall take such steps as may be necessary 

12 to ensure that the total amount of payments under 

13 this paragraph for such fiscal year does not exceed 

14 such total amount appropriated.’’. 

Æ 


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