I 

110TH CONGRESS 

2D SESSION H. R. 5739 

To assure that the services of a nonemergency department physician are 

available to hospital patients 24 hours a day, seven days a week in 

all non-Federal hospitals with at least 100 licensed beds. 

IN THE HOUSE OF REPRESENTATIVES 

APRIL 9, 2008 

Ms. SCHAKOWSKY (for herself and Mr. VISCLOSKY) introduced the following 

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

A BILL 

To assure that the services of a nonemergency department 

physician are available to hospital patients 24 hours a 

day, seven days a week in all non-Federal hospitals with 

at least 100 licensed beds. 

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 ‘‘Physician Availability 

5 Act of 2008’’. 


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1 SEC. 2. REQUIREMENT FOR PHYSICIAN AVAILABILITY IN 

2 ACUTE CARE HOSPITALS. 

3 (a) IN GENERAL.—Each covered hospital shall have 

4 a qualified physician available in the hospital 24 hours a 

5 day, seven days a week to attend to the needs of inpatients 

6 of the hospital. 

7 (b) DEFINITIONS.—For purposes of this section: 

8 (1) COVERED HOSPITAL.— 

9 (A) IN GENERAL.—Subject to subpara10 graph (B), the term ‘‘covered hospital’’ means 

11 a subsection (d) hospital (as defined in section 

12 1886(d)(1)(B) of the Social Security Act (42 

13 U.S.C. 1395ww(d)(1)(B)) that— 

14 (i) has a participation agreement in 

15 effect under section 1866 of such Act (42 

16 U.S.C. 1395cc); 

17 (ii) is participating in the program 

18 under title XIX of such Act; or 

19 (iii) is receiving Federal funds under 

20 a grant or cooperative agreement. 

21 (B) EXCLUSION FOR FEDERAL FACILITIES

22 AND SMALL HOSPITALS.—Such term does not 

23 include a hospital that— 

24 (i) is a facility of the Federal Govern25 ment; or 


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1 (ii) the Secretary of Health and 

2 Human Services determines has fewer than 

3 100 licensed beds (as defined by the Sec4 retary). 

5 (2) PHYSICIAN; QUALIFIED PHYSICIAN.— 

6 (A) The term ‘‘physician’’ means, with re7 spect to a hospital, an individual who is a doc8 tor of medicine or osteopathy legally authorized 

9 under State law to practice medicine and sur10 gery in that hospital. 

11 (B) The term ‘‘qualified physician’’ means, 

12 with respect to a hospital, an individual who is 

13 a physician and whose credentials as such a 

14 physician have been verified by the administra15 tion of the hospital (before providing any serv16 ices at the hospital) through appropriate means, 

17 including verification through the National 

18 Practitioner Databank. 

19 (3) PHYSICIAN AVAILABILITY.—A physician is 

20 considered to be ‘‘available’’ in a hospital if— 

21 (A) the physician is physically present in 

22 the hospital; 

23 (B) the physician’s primary responsibility 

24 is to be in attendance to serve the needs of the 

25 hospital’s inpatients without delay; and 


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1 (C) the physician is not physically present 

2 in, assigned to, serving in, or expected to cover, 

3 the hospital’s emergency room or emergency de4 partment. 

5 (c) ENFORCEMENT.— 

6 (1) WARNING.—If the Secretary of Health and 

7 Human Services (in this section referred to as the 

8 ‘‘Secretary’’) determines that a hospital has violated 

9 subsection (a), in the first instance the Secretary 

10 shall provide a written warning regarding such viola11 tion to the hospital and shall notify the Inspector 

12 General of the Department of Health and Human 

13 Services (in this section referred to as the ‘‘HHS In14 spector General’’) of such violation. Subsequently, 

15 the HHS Inspector General shall monitor the com16 pliance of the hospital with the requirement of sub17 section (a). 

18 (2) SECOND VIOLATION.—After providing a 

19 warning to a hospital under paragraph (1), if the 

20 Secretary determines that the hospital subsequently 

21 and knowingly violates subsection (a)— 

22 (A) the hospital is subject to a civil money 

23 penalty in an amount not to exceed $100,000, 

24 and 


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1 (B) the hospital shall submit to the HHS 

2 Inspector General, by not later than 30 days 

3 after the date of such a determination, a reme4 dial plan to prevent future violations of the re5 quirement of such subsection. 

6 The provisions of section 1128A of the Social Secu7 rity Act (42 U.S.C. 1320a–7a), other than sub8 sections (a) and (b) of such section, shall apply to 

9 civil money penalties under subparagraph (A) in the 

10 same manner as they apply to a penalty or pro11 ceeding under subsection (a) of such section. 

12 (3) SUBSEQUENT VIOLATIONS.—After imposing 

13 a civil money penalty under paragraph (2) against a 

14 hospital, if the Secretary determines that the hos15 pital subsequently and knowingly violates subsection 

16 (a), the Secretary may issue an order disqualifying 

17 the hospital from participation in the programs 

18 under titles XVIII and XIX of the Social Security 

19 Act and from receipt of Federal funds under any 

20 grant or cooperative agreement for such period as 

21 the Secretary specifies and until the Secretary re22 ceives satisfactory assurances that the hospital will 

23 be in substantial compliance with the requirement of 

24 subsection (a). 


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1 (4) FAILURE TO SUBMIT OR COMPLY WITH RE2 MEDIAL PLAN.—If the Secretary determines, after 

3 consultation with the HHS Inspector General, that 

4 a hospital has failed to submit a satisfactory reme5 dial plan required under paragraph (2)(B) or is fail6 ing to substantially carry out such a plan, the Sec7 retary may suspend payment of funds to the hospital 

8 under titles XVIII and XIX of the Social Security 

9 Act and under Federal grants or cooperative agree10 ments until the Secretary receives satisfactory assur11 ances that such failures will not continue. 

12 (d) EFFECTIVE DATE.—This section shall take effect 

13 on the first day of the first month that begins more than 

14 180 days after the date of the enactment of this Act. 

Æ 


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