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[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 3312 Introduced in Senate (IS)]

110th CONGRESS
  2d Session
                                S. 3312

To amend the Public Health Service Act to ensure that victims of public 
 health emergencies have meaningful and immediate access to medically 
                    necessary health care services.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             July 23, 2008

Mr. Durbin (for himself, Mr. Bingaman, and Mr. Feingold) introduced the 
 following bill; which was read twice and referred to the Committee on 
                 Health, Education, Labor, and Pensions

_______________________________________________________________________

                                 A BILL

 
To amend the Public Health Service Act to ensure that victims of public 
 health emergencies have meaningful and immediate access to medically 
                    necessary health care services.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Public Health Emergency Response Act 
of 2008''.

SEC. 2. FINDINGS AND PURPOSE.

    (a) Findings.--Congress finds the following:
            (1) Since 2000, the Secretary of Health and Human Services 
        has declared that a public health emergency existed nationwide 
        in response to the attacks of September 11th and in response to 
        Hurricanes Katrina and Rita.
            (2) In the event of a public health emergency, compliance 
        with recommendations to seek immediate care may be critical to 
        containing the spread of an infectious disease outbreak or 
        responding to a bioterror attack.
            (3) Nearly sixteen percent of Americans lack health 
        insurance coverage.
            (4) Fears of out-of-pocket expenses may cause individuals 
        to delay seeking medical attention during a public health 
        emergency.
            (5) A public health emergency may disrupt health care 
        assistance programs for individuals with chronic conditions, 
        exacerbating the costs and risks to their health.
            (6) The uninsured could place great financial strain on 
        healthcare providers during a public health emergency.
            (7) The Department of Health and Human Services Pandemic 
        Influenza Plan projects that a pandemic influenza outbreak 
        could result in 45 million additional outpatient visits, with 
        865,000 to 9,900,000 individuals requiring hospitalization, 
        depending upon the severity of the pandemic.
            (8) Hospitals in the United States could lose as much as 
        $3.9 billion in uncompensated care and cash flow losses in the 
        event of a severe pandemic.
            (9) Under current statute, no dedicated mechanism exists to 
        reimburse providers for uncompensated care during a public 
        health emergency.
    (b) Purposes.--The purposes of this Act are--
            (1) to provide temporary emergency healthcare coverage for 
        uninsured and certain otherwise qualified individuals in the 
        event of a public health emergency declared by the Secretary of 
        Health and Human Services;
            (2) to ensure that healthcare providers remain fiscally 
        solvent and are not overburdened by the cost of uncompensated 
        care during a public health emergency;
            (3) to eliminate a primary disincentive for uninsured and 
        certain otherwise qualified individuals to promptly seek 
        medical care during a public health emergency; and
            (4) to minimize delays in the provision of emergency 
        healthcare coverage by clarifying eligibility requirements and 
        the scope of such coverage and identifying the funding 
        mechanisms for emergency healthcare services.

SEC. 3. EMERGENCY HEALTHCARE COVERAGE.

    (a) In General.--Title III of the Public Health Service Act is 
amended by inserting after section 319K the following new section:

``SEC. 319K-1. EMERGENCY HEALTHCARE COVERAGE.

    ``(a) Activation and Termination of Emergency Healthcare 
Coverage.--
            ``(1) Based on public health emergency.--
                    ``(A) In general.--The Secretary may activate the 
                coverage of emergency healthcare services under this 
                section only if the Secretary determines that there is 
                a public health emergency.
                    ``(B) Determination of public health emergency.--
                For purposes of this section, there is a `public health 
                emergency' only if a public health emergency exists 
                under section 319.
            ``(2) Considerations.--In making a determination under 
        paragraph (1), the Secretary shall consider a range of factors 
        including the following:
                    ``(A) The degree to which the emergency is likely 
                to overwhelm healthcare providers in the region.
                    ``(B) The opportunity to minimize morbidity and 
                mortality through intervention under this section.
                    ``(C) The estimated number of direct casualties of 
                the emergency.
                    ``(D) The potential number of casualties in the 
                absence of intervention under this section (such as in 
                the case of infectious disease).
                    ``(E) The potential adverse financial impacts on 
                local healthcare providers in the absence of activation 
                of this section.
                    ``(F) The need for healthcare services is of 
                sufficient severity and magnitude to warrant major 
                assistance under this section above and beyond the 
                emergency services otherwise available from the Federal 
                Government.
                    ``(G) Such other factors as the Secretary may deem 
                appropriate.
            ``(3) Termination and extension.--
                    ``(A) In general.--Coverage of emergency healthcare 
                services under this section shall terminate, subject to 
                subsection (c)(2), upon the earlier of the following:
                            ``(i) The Secretary's determination that a 
                        public health emergency no longer exists.
                            ``(ii) Subject to subparagraph (B), 90 days 
                        after the initiation of coverage of emergency 
                        healthcare services.
                    ``(B) Extension authority.--The Secretary may 
                extend a public health emergency for a second 90-day 
                period, but only if a report to Congress is made under 
                paragraph (4) in conjunction with making such 
                extension.
            ``(4) Report.--
                    ``(A) In general.--Prior to making an extension 
                under paragraph (3)(B), the Secretary shall transmit a 
                report to Congress that includes information on the 
                nature of the public health emergency and the expected 
                duration of the emergency. The Secretary shall include 
                in such report recommendations, if deemed appropriate, 
                regarding requesting Congress to provide a further 
                extension of the public health emergency period beyond 
                the second 90-day period.
                    ``(B) Report contents.--A report under subparagraph 
                (A) shall include a discussion of the healthcare needs 
                of emergency victims and affected individuals including 
                the likely need for follow-up care over a two-year 
                period.
            ``(5) Coordination.--The Secretary shall ensure that the 
        activation, implementation, and termination of emergency 
        healthcare services under this section in response to a public 
        health emergency is coordinated with all functions, personnel, 
        and assets of the Federal, State, local, and tribal responses 
        to the emergency.
            ``(6) Medical monitoring program.--The Secretary shall 
        establish a medical monitoring program for monitoring and 
        reporting on healthcare needs of the affected population over 
        time. At least annually during the 5-year period following the 
        date of a public health emergency, the Secretary shall report 
        to Congress on any continuing healthcare needs of the affected 
        population related to the public health emergency. Such reports 
        shall include recommendations on how to ensure that emergency 
        victims and affected individuals have access to needed 
        healthcare services.
    ``(b) Eligibility for Coverage of Emergency Healthcare Services.--
            ``(1) Limited eligibility.--
                    ``(A) In general.--Eligibility for coverage of 
                emergency healthcare services under this section for a 
                public health emergency is limited to individuals who--
                            ``(i) are emergency victims who are 
                        uninsured or otherwise qualified; or
                            ``(ii) are affected individuals who are 
                        uninsured.
                    ``(B) Definitions.--For purposes of this section 
                with respect to a public health emergency:
                            ``(i) Insured.--An individual is `insured' 
                        if the individual has group or individual 
                        health insurance coverage or publicly financed 
                        health insurance (as defined by the Secretary).
                            ``(ii) Otherwise qualified.--An individual 
                        is ``otherwise qualified'' if the individual is 
                        insured but the Secretary determines that the 
                        individual's healthcare insurance coverage is 
                        not at least actuarially-equivalent to 
                        benchmark coverage. In establishing such 
                        benchmark coverage, the Secretary shall 
                        consider the standard Blue Cross/Blue Shield 
                        preferred provider option service benefit plan 
                        described in and offered under section 8903(1) 
                        of title 5, United States Code.
                            ``(iii) Uninsured.--An individual is 
                        `uninsured' if the individual is not insured.
                            ``(iv) Emergency victim.--An individual is 
                        an `emergency victim' with respect to a public 
                        health emergency if the individual needs 
                        healthcare services due to injuries or disease 
                        resulting from the public health emergency.
                            ``(v) Affected individual.--An individual 
                        is an `affected individual' with respect to a 
                        public health emergency if--
                                    ``(I) the individual resides in an 
                                assistance area designated for the 
                                emergency (or whose residence was 
                                displaced by the emergency) or, in the 
                                case of such an emergency constituting 
                                a pandemic flu or other infectious 
                                disease outbreak, who resides in the 
                                area affected by the outbreak (or whose 
                                residence was displaced by the 
                                emergency); and
                                    ``(II) the individual's ability to 
                                access care or medicine is disrupted as 
                                a result of the emergency.
            ``(2) Process.--The Secretary shall establish a streamlined 
        process for determining eligibility for emergency healthcare 
        services under this section. In establishing such process--
                    ``(A) the Secretary shall recognize that in the 
                context of a public health emergency, individuals may 
                be unable to provide identification cards, healthcare 
                insurance information, or other documentation; and
                    ``(B) the primary method for determining 
                eligibility for such services shall be an attestation 
                provided to the healthcare provider by the recipient of 
                the services that the recipient meets the eligibility 
                criteria established under paragraph (1)(A), with a 
                standard alternative for unattended minors and adults 
                without the capacity to sign such an attestation form.
            ``(3) Service delivery.--Providers may commence provision 
        of emergency healthcare services for an individual in the 
        absence of any centralized enrollment process, if the provider 
        has collected basic information, specified by the Secretary, 
        including the individual's name, address, social security 
        number, and existing health insurance coverage (if any), that 
        establishes a prima facie basis for eligibility, except that 
        such information shall not be required in cases where the 
        individual is unable to provide the information due to 
        disability or incapacitation.
    ``(c) Emergency Healthcare Services.--
            ``(1) In general.--For purposes of this section, the term 
        `emergency healthcare services'--
                    ``(A) means items and services for which payment 
                may be made under parts A and B of the Medicare 
                program;
                    ``(B) includes prescription drugs (not covered 
                under such part B) specified by the Secretary under 
                subsection (g), based on the formularies of the two or 
                more prescription drug plans under part D of the 
                Medicare program with the largest enrollment;
                    ``(C) may include drugs, devices, biologics, and 
                other healthcare products, if such products are 
                authorized for use by the Food and Drug Administration 
                pursuant to an alternate authority, including the 
                emergency use authority under section 564 of the 
                Federal Food, Drug, and Cosmetic Act (21 U.S.C. 360bbb-
                3); and
                    ``(D) for an affected individual, is limited to 
                those items and services described under subparagraphs 
                (A), (B) or (C) that a third-party payor, such as a 
                government program or charitable organization, 
                reimbursed or otherwise provided to an affected 
                individual during the three months prior to the 
                declaration of the public health emergency.
            ``(2) Not medicare, medicaid, or schip benefits.--The 
        emergency healthcare services provided under this section are 
        not benefits under Medicare, Medicaid or SCHIP. Nothing in this 
        section shall be interpreted as altering or otherwise 
        conflicting with titles XVIII, XIX, or XXI of the Social 
        Security Act.
            ``(3) Completion of treatment for emergency victims.--
        Notwithstanding termination of the coverage of emergency 
        healthcare services pursuant to subsection (a)(4), the 
        Secretary may identify a subgroup of emergency victims on a 
        case-by-case basis or otherwise to continue receiving coverage 
        of emergency healthcare services for up to an additional 60 
        days. Such emergency healthcare services provided after the 
        termination date shall be limited to services and items that 
        are medically necessary to treat an injury or disease resulting 
        directly from the public health emergency involved.
    ``(d) Covered Providers.--
            ``(1) In general.--Subject to paragraph (2), healthcare 
        services are not covered under this section unless they are 
        furnished by a healthcare provider that--
                    ``(A) has a valid provider number under the 
                Medicare program, the Medicaid program, or SCHIP;
                    ``(B) is in good standing with such program; and
                    ``(C) is not excluded from participation in a 
                Federal health care program (as defined in section 
                1128B(f) of the Social Security Act, 42 U.S.C. 1320a-
                7b(f)).
            ``(2) Waiver authority.--
                    ``(A) In general.--The Secretary may by regulation 
                waive certain requirements for provider enrollment that 
                otherwise apply under the Medicare or Medicaid program 
                or under SCHIP to ensure an adequate supply of 
                healthcare providers (such as nurses and other health 
                care providers who do not typically participate in the 
                Medicare or Medicaid program or SCHIP) and services in 
                the case of a public health emergency. Such 
                requirements may include the requirement that a 
                licensed physician or other health care professional 
                holds a license in the State in which the professional 
                provides services or is otherwise authorized under 
                State law to provide the services involved.
                    ``(B) Report on emergency system for advance 
                registration of volunteer health professionals (esar-
                vhp).--Not later than 180 days after the date of the 
                enactment of this section, the Secretary shall submit 
                to Congress a report on the number of volunteers, by 
                profession and credential level, enrolled in the 
                Emergency System for Advance Registration of Volunteer 
                Health Professionals (ESAR-VHP) that will be available 
                to each State in the event of a public health 
                emergency. The Secretary shall determine if the number 
                of such volunteers is adequate for interstate 
                deployment in response to regional requests for 
                volunteers and, if not, shall include in the report 
                recommendations for actions to ensure an adequate surge 
                capacity for public health emergencies in defined 
                geographic areas.
            ``(3) Medicare and medicaid programs and schip defined.--
        For purposes of this section:
                    ``(A) The term `Medicare program' means the program 
                under parts A, B, and D of title XVIII of the Social 
                Security.
                    ``(B) The term `Medicaid program' means the program 
                of medical assistance under title XIX of such Act.
                    ``(C) The term `SCHIP' means the State children's 
                health insurance program under title XXI of such Act.
    ``(e) Payments and Claims Administration.--
            ``(1) Payment amount.--The amount of payment under this 
        section to a provider for emergency healthcare services shall 
        be equal to 100 percent of the payment rate for the 
        corresponding service under part A or B of the Medicare 
        program, or, in the case of prescription drugs and other items 
        and services not covered under either such part, such amount as 
        the Secretary may specify by rule. Such a provider shall not be 
        permitted to impose any cost-sharing or to balance bill for 
        services furnished under this section.
            ``(2) Use of medicare contractors.--The Secretary shall 
        enter into arrangements with Medicare administrative 
        contractors under which they process claims for emergency 
        healthcare services under this section using the claim forms, 
        codes, and nomenclature in effect under the Medicare program.
            ``(3) Application of secondary payer rules.--In the case of 
        payment under this section for emergency healthcare services 
        for otherwise qualified individuals who have some health 
        insurance coverage with respect to such services, the 
        administrative contractors under paragraph (2) shall submit a 
        claim to the entity offering such coverage to recoup all or 
        some of such payment, reflecting whatever amount the entity 
        would normally reimburse for each covered service. The 
        provisions of section 1862(b) of the Social Security Act (42 
        U.S.C. 1395y(b)) shall apply to benefits provided under this 
        section in the same manner as they apply to benefits provided 
        under the Medicare program.
            ``(4) Payments for emergency healthcare services and 
        related costs.--Payments to provide, and costs to administer, 
        emergency healthcare services under this section shall be made 
        from the Public Health Emergency Fund, as provided under 
        subsection (f)(1).
            ``(5) Attestation requirement.--No payment shall be made 
        under this section to a provider for emergency healthcare 
        services unless the provider has executed an attestation that--
                    ``(A) the provider has notified the administrative 
                contractor of any third-party payment received or 
                claims pending for such services;
                    ``(B) the recipient of the services has executed an 
                attestation or otherwise satisfies the eligibility 
                criteria established under subsection (b); and
                    ``(C) the services were medically necessary.
    ``(f) Public Health Emergency Fund; Fraud and Abuse Provisions.--
            ``(1) The public health emergency fund.--There is 
        authorized to be appropriated to the Public Health Emergency 
        Fund (established under section 319(b)) such sums as may be 
        necessary under this section for payments to provide emergency 
        healthcare services and costs to administer the services during 
        a public health emergency.
            ``(2) No use of medicare funds.--No funds under the 
        Medicare program shall be available or used to make payments 
        under this section.
            ``(3) Fraud and abuse provisions.--Providers and recipients 
        of emergency healthcare services under this section shall be 
        subject to the Federal fraud and abuse protections that apply 
        to Federal healthcare programs as defined in section 1128B(f) 
        of the Social Security Act.
    ``(g) Rulemaking.--The Secretary may issue regulations to carry out 
this section and shall use a negotiated rulemaking process to advise 
the Secretary on key issues regarding the implementation of this 
section.
    ``(h) Public Health Emergency Planning and the Education of 
Healthcare Providers and the General Population.--
            ``(1) Planning for coverage of emergency healthcare 
        services in public health emergencies.--The Secretary shall, 
        within 90 days after the date of the enactment of this section, 
        initiate planning to carry out this section, including planning 
        relating to implementation of the subsection (e) in the event 
        of activation of emergency healthcare coverage.
            ``(2) Outreach and public education campaign.--The 
        Secretary shall conduct an outreach and public education 
        campaign to inform healthcare providers and the general public 
        about the availability of emergency healthcare coverage under 
        this section during the period of the emergency. Such campaign 
        shall include--
                    ``(A) an explanation of the emergency healthcare 
                coverage program under this section;
                    ``(B) claim forms and instructions for healthcare 
                providers to use when providing covered services during 
                the emergency period; and
                    ``(C) special outreach initiatives to vulnerable 
                and hard-to-reach populations.
            ``(3) Authorization of appropriations.--There is authorized 
        to be appropriated for each fiscal year (beginning with fiscal 
        year 2009) $7,000,000 to carry out paragraphs (1) and (2) 
        during the fiscal year.
    ``(i) Application of Policies Under Other Federal Health Care 
Programs.--As specified in subsections (c) through (e), the Secretary 
may adopt in whole or in part the coverage, reimbursement, provider 
enrollment, and other policies used under the Medicare program and 
other Federal health care programs in administering emergency 
healthcare services under this section to the extent consistent with 
this section.''.
    (b) Application of Public Health Emergency Fund.--Section 319(b)(1) 
of such Act (42 U.S.C. 247d(b)(1)) is amended--
            (1) by inserting ``and section 319K-1'' after ``subsection 
        (a)''; and
            (2) by striking ``such subsection'' and inserting 
        ``subsection (a)''.
                                 <all>
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