II 

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. 

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 ‘‘Public Health Emer5 gency Response Act of 2008’’. 

6 SEC. 2. FINDINGS AND PURPOSE. 

7 (a) FINDINGS.—Congress finds the following: 


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1 (1) Since 2000, the Secretary of Health and 

2 Human Services has declared that a public health 

3 emergency existed nationwide in response to the at4 tacks of September 11th and in response to Hurri5 canes Katrina and Rita. 

6 (2) In the event of a public health emergency, 

7 compliance with recommendations to seek immediate 

8 care may be critical to containing the spread of an 

9 infectious disease outbreak or responding to a bio10 terror attack. 

11 (3) Nearly sixteen percent of Americans lack 

12 health insurance coverage. 

13 (4) Fears of out-of-pocket expenses may cause 

14 individuals to delay seeking medical attention during 

15 a public health emergency. 

16 (5) A public health emergency may disrupt 

17 health care assistance programs for individuals with 

18 chronic conditions, exacerbating the costs and risks 

19 to their health. 

20 (6) The uninsured could place great financial 

21 strain on healthcare providers during a public health 

22 emergency. 

23 (7) The Department of Health and Human 

24 Services Pandemic Influenza Plan projects that a 

25 pandemic influenza outbreak could result in 45 milVerDate Aug 31 2005 05:02 Jul 24, 2008 Jkt 069200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3312.IS S3312

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1 lion additional outpatient visits, with 865,000 to 

2 9,900,000 individuals requiring hospitalization, de3 pending upon the severity of the pandemic. 

4 (8) Hospitals in the United States could lose as 

5 much as $3.9 billion in uncompensated care and 

6 cash flow losses in the event of a severe pandemic. 

7 (9) Under current statute, no dedicated mecha8 nism exists to reimburse providers for uncompen9 sated care during a public health emergency. 

10 (b) PURPOSES.—The purposes of this Act are— 

11 (1) to provide temporary emergency healthcare 

12 coverage for uninsured and certain otherwise quali13 fied individuals in the event of a public health emer14 gency declared by the Secretary of Health and 

15 Human Services; 

16 (2) to ensure that healthcare providers remain 

17 fiscally solvent and are not overburdened by the cost 

18 of uncompensated care during a public health emer19 gency; 

20 (3) to eliminate a primary disincentive for unin21 sured and certain otherwise qualified individuals to 

22 promptly seek medical care during a public health 

23 emergency; and 

24 (4) to minimize delays in the provision of emer25 gency healthcare coverage by clarifying eligibility reVerDate Aug 31 2005 05:02 Jul 24, 2008 Jkt 069200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3312.IS S3312

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1 quirements and the scope of such coverage and iden2 tifying the funding mechanisms for emergency 

3 healthcare services. 

4 SEC. 3. EMERGENCY HEALTHCARE COVERAGE. 

5 (a) IN GENERAL.—Title III of the Public Health 

6 Service Act is amended by inserting after section 319K 

7 the following new section: 

8 ‘‘SEC. 319K–1. EMERGENCY HEALTHCARE COVERAGE. 

9 ‘‘(a) ACTIVATION AND TERMINATION OF EMER10 GENCY HEALTHCARE COVERAGE.— 

11 ‘‘(1) BASED ON PUBLIC HEALTH EMER12 GENCY.— 

13 ‘‘(A) IN GENERAL.—The Secretary may 

14 activate the coverage of emergency healthcare 

15 services under this section only if the Secretary 

16 determines that there is a public health emer17 gency. 

18 ‘‘(B) DETERMINATION OF PUBLIC HEALTH

19 EMERGENCY.—For purposes of this section, 

20 there is a ‘public health emergency’ only if a 

21 public health emergency exists under section 

22 319. 

23 ‘‘(2) CONSIDERATIONS.—In making a deter24 mination under paragraph (1), the Secretary shall 

25 consider a range of factors including the following: 


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1 ‘‘(A) The degree to which the emergency is 

2 likely to overwhelm healthcare providers in the 

3 region. 

4 ‘‘(B) The opportunity to minimize mor5 bidity and mortality through intervention under 

6 this section. 

7 ‘‘(C) The estimated number of direct cas8 ualties of the emergency. 

9 ‘‘(D) The potential number of casualties in 

10 the absence of intervention under this section 

11 (such as in the case of infectious disease). 

12 ‘‘(E) The potential adverse financial im13 pacts on local healthcare providers in the ab14 sence of activation of this section. 

15 ‘‘(F) The need for healthcare services is of 

16 sufficient severity and magnitude to warrant 

17 major assistance under this section above and 

18 beyond the emergency services otherwise avail19 able from the Federal Government. 

20 ‘‘(G) Such other factors as the Secretary 

21 may deem appropriate. 

22 ‘‘(3) TERMINATION AND EXTENSION.— 

23 ‘‘(A) IN GENERAL.—Coverage of emer24 gency healthcare services under this section 


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1 shall terminate, subject to subsection (c)(2), 

2 upon the earlier of the following: 

3 ‘‘(i) The Secretary’s determination 

4 that a public health emergency no longer 

5 exists. 

6 ‘‘(ii) Subject to subparagraph (B), 90 

7 days after the initiation of coverage of 

8 emergency healthcare services. 

9 ‘‘(B) EXTENSION AUTHORITY.—The Sec10 retary may extend a public health emergency 

11 for a second 90-day period, but only if a report 

12 to Congress is made under paragraph (4) in 

13 conjunction with making such extension. 

14 ‘‘(4) REPORT.— 

15 ‘‘(A) IN GENERAL.—Prior to making an 

16 extension under paragraph (3)(B), the Sec17 retary shall transmit a report to Congress that 

18 includes information on the nature of the public 

19 health emergency and the expected duration of 

20 the emergency. The Secretary shall include in 

21 such report recommendations, if deemed appro22 priate, regarding requesting Congress to pro23 vide a further extension of the public health 

24 emergency period beyond the second 90-day pe25 riod. 


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1 ‘‘(B) REPORT CONTENTS.—A report under 

2 subparagraph (A) shall include a discussion of 

3 the healthcare needs of emergency victims and 

4 affected individuals including the likely need for 

5 follow-up care over a two-year period. 

6 ‘‘(5) COORDINATION.—The Secretary shall en7 sure that the activation, implementation, and termi8 nation of emergency healthcare services under this 

9 section in response to a public health emergency is 

10 coordinated with all functions, personnel, and assets 

11 of the Federal, State, local, and tribal responses to 

12 the emergency. 

13 ‘‘(6) MEDICAL MONITORING PROGRAM.—The 

14 Secretary shall establish a medical monitoring pro15 gram for monitoring and reporting on healthcare 

16 needs of the affected population over time. At least 

17 annually during the 5-year period following the date 

18 of a public health emergency, the Secretary shall re19 port to Congress on any continuing healthcare needs 

20 of the affected population related to the public 

21 health emergency. Such reports shall include rec22 ommendations on how to ensure that emergency vic23 tims and affected individuals have access to needed 

24 healthcare services. 


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1 ‘‘(b) ELIGIBILITY FOR COVERAGE OF EMERGENCY

2 HEALTHCARE SERVICES.— 

3 ‘‘(1) LIMITED ELIGIBILITY.— 

4 ‘‘(A) IN GENERAL.—Eligibility for cov5 erage of emergency healthcare services under 

6 this section for a public health emergency is 

7 limited to individuals who— 

8 ‘‘(i) are emergency victims who are 

9 uninsured or otherwise qualified; or 

10 ‘‘(ii) are affected individuals who are 

11 uninsured. 

12 ‘‘(B) DEFINITIONS.—For purposes of this 

13 section with respect to a public health emer14 gency: 

15 ‘‘(i) INSURED.—An individual is ‘in16 sured’ if the individual has group or indi17 vidual health insurance coverage or pub18 licly financed health insurance (as defined 

19 by the Secretary). 

20 ‘‘(ii) OTHERWISE QUALIFIED.—An in21 dividual is ‘‘otherwise qualified’’ if the in22 dividual is insured but the Secretary deter23 mines that the individual’s healthcare in24 surance coverage is not at least actuarially25 equivalent to benchmark coverage. In esVerDate Aug 31 2005 05:02 Jul 24, 2008 Jkt 069200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S3312.IS S3312

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1 tablishing such benchmark coverage, the 

2 Secretary shall consider the standard Blue 

3 Cross/Blue Shield preferred provider op4 tion service benefit plan described in and 

5 offered under section 8903(1) of title 5, 

6 United States Code. 

7 ‘‘(iii) UNINSURED.—An individual is 

8 ‘uninsured’ if the individual is not insured. 

9 ‘‘(iv) EMERGENCY VICTIM.—An indi10 vidual is an ‘emergency victim’ with re11 spect to a public health emergency if the 

12 individual needs healthcare services due to 

13 injuries or disease resulting from the pub14 lic health emergency. 

15 ‘‘(v) AFFECTED INDIVIDUAL.—An in16 dividual is an ‘affected individual’ with re17 spect to a public health emergency if— 

18 ‘‘(I) the individual resides in an 

19 assistance area designated for the 

20 emergency (or whose residence was 

21 displaced by the emergency) or, in the 

22 case of such an emergency consti23 tuting a pandemic flu or other infec24 tious disease outbreak, who resides in 

25 the area affected by the outbreak (or 


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1 whose residence was displaced by the 

2 emergency); and 

3 ‘‘(II) the individual’s ability to 

4 access care or medicine is disrupted 

5 as a result of the emergency. 

6 ‘‘(2) PROCESS.—The Secretary shall establish a 

7 streamlined process for determining eligibility for 

8 emergency healthcare services under this section. In 

9 establishing such process— 

10 ‘‘(A) the Secretary shall recognize that in 

11 the context of a public health emergency, indi12 viduals may be unable to provide identification 

13 cards, healthcare insurance information, or 

14 other documentation; and 

15 ‘‘(B) the primary method for determining 

16 eligibility for such services shall be an attesta17 tion provided to the healthcare provider by the 

18 recipient of the services that the recipient meets 

19 the eligibility criteria established under para20 graph (1)(A), with a standard alternative for 

21 unattended minors and adults without the ca22 pacity to sign such an attestation form. 

23 ‘‘(3) SERVICE DELIVERY.—Providers may com24 mence provision of emergency healthcare services for 

25 an individual in the absence of any centralized enVerDate Aug 31 2005 05:02 Jul 24, 2008 Jkt 069200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S3312.IS S3312

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1 rollment process, if the provider has collected basic 

2 information, specified by the Secretary, including the 

3 individual’s name, address, social security number, 

4 and existing health insurance coverage (if any), that 

5 establishes a prima facie basis for eligibility, except 

6 that such information shall not be required in cases 

7 where the individual is unable to provide the infor8 mation due to disability or incapacitation. 

9 ‘‘(c) EMERGENCY HEALTHCARE SERVICES.— 

10 ‘‘(1) IN GENERAL.—For purposes of this sec11 tion, the term ‘emergency healthcare services’— 

12 ‘‘(A) means items and services for which 

13 payment may be made under parts A and B of 

14 the Medicare program; 

15 ‘‘(B) includes prescription drugs (not cov16 ered under such part B) specified by the Sec17 retary under subsection (g), based on the 

18 formularies of the two or more prescription 

19 drug plans under part D of the Medicare pro20 gram with the largest enrollment; 

21 ‘‘(C) may include drugs, devices, biologics, 

22 and other healthcare products, if such products 

23 are authorized for use by the Food and Drug 

24 Administration pursuant to an alternate au25 thority, including the emergency use authority 


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1 under section 564 of the Federal Food, Drug, 

2 and Cosmetic Act (21 U.S.C. 360bbb–3); and 

3 ‘‘(D) for an affected individual, is limited 

4 to those items and services described under sub5 paragraphs (A), (B) or (C) that a third-party 

6 payor, such as a government program or chari7 table organization, reimbursed or otherwise pro8 vided to an affected individual during the three 

9 months prior to the declaration of the public 

10 health emergency. 

11 ‘‘(2) NOT MEDICARE, MEDICAID, OR SCHIP BEN12 EFITS.—The emergency healthcare services provided 

13 under this section are not benefits under Medicare, 

14 Medicaid or SCHIP. Nothing in this section shall be 

15 interpreted as altering or otherwise conflicting with 

16 titles XVIII, XIX, or XXI of the Social Security 

17 Act. 

18 ‘‘(3) COMPLETION OF TREATMENT FOR EMER19 GENCY VICTIMS.—Notwithstanding termination of 

20 the coverage of emergency healthcare services pursu21 ant to subsection (a)(4), the Secretary may identify 

22 a subgroup of emergency victims on a case-by-case 

23 basis or otherwise to continue receiving coverage of 

24 emergency healthcare services for up to an addi25 tional 60 days. Such emergency healthcare services 


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1 provided after the termination date shall be limited 

2 to services and items that are medically necessary to 

3 treat an injury or disease resulting directly from the 

4 public health emergency involved. 

5 ‘‘(d) COVERED PROVIDERS.— 

6 ‘‘(1) IN GENERAL.—Subject to paragraph (2), 

7 healthcare services are not covered under this sec8 tion unless they are furnished by a healthcare pro9 vider that— 

10 ‘‘(A) has a valid provider number under 

11 the Medicare program, the Medicaid program, 

12 or SCHIP; 

13 ‘‘(B) is in good standing with such pro14 gram; and 

15 ‘‘(C) is not excluded from participation in 

16 a Federal health care program (as defined in 

17 section 1128B(f) of the Social Security Act, 42 

18 U.S.C. 1320a–7b(f)). 

19 ‘‘(2) WAIVER AUTHORITY.— 

20 ‘‘(A) IN GENERAL.—The Secretary may by 

21 regulation waive certain requirements for pro22 vider enrollment that otherwise apply under the 

23 Medicare or Medicaid program or under SCHIP 

24 to ensure an adequate supply of healthcare pro25 viders (such as nurses and other health care 


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1 providers who do not typically participate in the 

2 Medicare or Medicaid program or SCHIP) and 

3 services in the case of a public health emer4 gency. Such requirements may include the re5 quirement that a licensed physician or other 

6 health care professional holds a license in the 

7 State in which the professional provides services 

8 or is otherwise authorized under State law to 

9 provide the services involved. 

10 ‘‘(B) REPORT ON EMERGENCY SYSTEM

11 FOR ADVANCE REGISTRATION OF VOLUNTEER

12 HEALTH PROFESSIONALS (ESAR–VHP).—Not 

13 later than 180 days after the date of the enact14 ment of this section, the Secretary shall submit 

15 to Congress a report on the number of volun16 teers, by profession and credential level, en17 rolled in the Emergency System for Advance 

18 Registration of Volunteer Health Professionals 

19 (ESAR–VHP) that will be available to each 

20 State in the event of a public health emergency. 

21 The Secretary shall determine if the number of 

22 such volunteers is adequate for interstate de23 ployment in response to regional requests for 

24 volunteers and, if not, shall include in the re25 port recommendations for actions to ensure an 


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1 adequate surge capacity for public health emer2 gencies in defined geographic areas. 

3 ‘‘(3) MEDICARE AND MEDICAID PROGRAMS AND

4 SCHIP DEFINED.—For purposes of this section: 

5 ‘‘(A) The term ‘Medicare program’ means 

6 the program under parts A, B, and D of title 

7 XVIII of the Social Security. 

8 ‘‘(B) The term ‘Medicaid program’ means 

9 the program of medical assistance under title 

10 XIX of such Act. 

11 ‘‘(C) The term ‘SCHIP’ means the State 

12 children’s health insurance program under title 

13 XXI of such Act. 

14 ‘‘(e) PAYMENTS AND CLAIMS ADMINISTRATION.— 

15 ‘‘(1) PAYMENT AMOUNT.—The amount of pay16 ment under this section to a provider for emergency 

17 healthcare services shall be equal to 100 percent of 

18 the payment rate for the corresponding service 

19 under part A or B of the Medicare program, or, in 

20 the case of prescription drugs and other items and 

21 services not covered under either such part, such 

22 amount as the Secretary may specify by rule. Such 

23 a provider shall not be permitted to impose any cost24 sharing or to balance bill for services furnished 

25 under this section. 


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1 ‘‘(2) USE OF MEDICARE CONTRACTORS.—The 

2 Secretary shall enter into arrangements with Medi3 care administrative contractors under which they 

4 process claims for emergency healthcare services 

5 under this section using the claim forms, codes, and 

6 nomenclature in effect under the Medicare program. 

7 ‘‘(3) APPLICATION OF SECONDARY PAYER

8 RULES.—In the case of payment under this section 

9 for emergency healthcare services for otherwise 

10 qualified individuals who have some health insurance 

11 coverage with respect to such services, the adminis12 trative contractors under paragraph (2) shall submit 

13 a claim to the entity offering such coverage to re14 coup all or some of such payment, reflecting what15 ever amount the entity would normally reimburse for 

16 each covered service. The provisions of section 

17 1862(b) of the Social Security Act (42 U.S.C. 

18 1395y(b)) shall apply to benefits provided under this 

19 section in the same manner as they apply to benefits 

20 provided under the Medicare program. 

21 ‘‘(4) PAYMENTS FOR EMERGENCY HEALTHCARE

22 SERVICES AND RELATED COSTS.—Payments to pro23 vide, and costs to administer, emergency healthcare 

24 services under this section shall be made from the 


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1 Public Health Emergency Fund, as provided under 

2 subsection (f)(1). 

3 ‘‘(5) ATTESTATION REQUIREMENT.—No pay4 ment shall be made under this section to a provider 

5 for emergency healthcare services unless the provider 

6 has executed an attestation that— 

7 ‘‘(A) the provider has notified the adminis8 trative contractor of any third-party payment 

9 received or claims pending for such services; 

10 ‘‘(B) the recipient of the services has exe11 cuted an attestation or otherwise satisfies the 

12 eligibility criteria established under subsection 

13 (b); and 

14 ‘‘(C) the services were medically necessary. 

15 ‘‘(f) PUBLIC HEALTH EMERGENCY FUND; FRAUD

16 AND ABUSE PROVISIONS.— 

17 ‘‘(1) THE PUBLIC HEALTH EMERGENCY

18 FUND.—There is authorized to be appropriated to 

19 the Public Health Emergency Fund (established 

20 under section 319(b)) such sums as may be nec21 essary under this section for payments to provide 

22 emergency healthcare services and costs to admin23 ister the services during a public health emergency. 


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1 ‘‘(2) NO USE OF MEDICARE FUNDS.—No funds 

2 under the Medicare program shall be available or 

3 used to make payments under this section. 

4 ‘‘(3) FRAUD AND ABUSE PROVISIONS.—Pro5 viders and recipients of emergency healthcare serv6 ices under this section shall be subject to the Fed7 eral fraud and abuse protections that apply to Fed8 eral healthcare programs as defined in section 

9 1128B(f) of the Social Security Act. 

10 ‘‘(g) RULEMAKING.—The Secretary may issue regu11 lations to carry out this section and shall use a negotiated 

12 rulemaking process to advise the Secretary on key issues 

13 regarding the implementation of this section. 

14 ‘‘(h) PUBLIC HEALTH EMERGENCY PLANNING AND

15 THE EDUCATION OF HEALTHCARE PROVIDERS AND THE

16 GENERAL POPULATION.— 

17 ‘‘(1) PLANNING FOR COVERAGE OF EMERGENCY

18 HEALTHCARE SERVICES IN PUBLIC HEALTH EMER19 GENCIES.—The Secretary shall, within 90 days after 

20 the date of the enactment of this section, initiate 

21 planning to carry out this section, including plan22 ning relating to implementation of the subsection (e) 

23 in the event of activation of emergency healthcare 

24 coverage. 


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1 ‘‘(2) OUTREACH AND PUBLIC EDUCATION CAM2 PAIGN.—The Secretary shall conduct an outreach 

3 and public education campaign to inform healthcare 

4 providers and the general public about the avail5 ability of emergency healthcare coverage under this 

6 section during the period of the emergency. Such 

7 campaign shall include— 

8 ‘‘(A) an explanation of the emergency 

9 healthcare coverage program under this section; 

10 ‘‘(B) claim forms and instructions for 

11 healthcare providers to use when providing cov12 ered services during the emergency period; and 

13 ‘‘(C) special outreach initiatives to vulner14 able and hard-to-reach populations. 

15 ‘‘(3) AUTHORIZATION OF APPROPRIATIONS.— 

16 There is authorized to be appropriated for each fis17 cal year (beginning with fiscal year 2009) 

18 $7,000,000 to carry out paragraphs (1) and (2) dur19 ing the fiscal year. 

20 ‘‘(i) APPLICATION OF POLICIES UNDER OTHER FED21 ERAL HEALTH CARE PROGRAMS.—As specified in sub22 sections (c) through (e), the Secretary may adopt in whole 

23 or in part the coverage, reimbursement, provider enroll24 ment, and other policies used under the Medicare program 

25 and other Federal health care programs in administering 


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1 emergency healthcare services under this section to the ex2 tent consistent with this section.’’. 

3 (b) APPLICATION OF PUBLIC HEALTH EMERGENCY

4 FUND.—Section 319(b)(1) of such Act (42 U.S.C. 

5 247d(b)(1)) is amended— 

6 (1) by inserting ‘‘and section 319K–1’’ after 

7 ‘‘subsection (a)’’; and 

8 (2) by striking ‘‘such subsection’’ and inserting 

9 ‘‘subsection (a)’’. 

Æ 


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