S5850 CONGRESSIONAL RECORD — SENATE April 27, 1995

the health plan in which a physician participates in place of personal liability on the

physician in order to achieve improved quality of care, reductions in defensive medical

practices, and better risk management.

(7) PRACTICE GUIDELINES.—The term ‘‘practice guidelines’’ means guidelines established by the Agency for Health Care Policy

and Research pursuant to the Public Health

Service Act or this Act.

(c) APPLICATIONS BY STATES.—

(1) IN GENERAL.—Each State desiring to establish a malpractice reform demonstration

project shall submit an application to the

Secretary at such time and in such manner

as the Secretary shall require.

(2) CONTENTS OF APPLICATION.—An application under paragraph (1) shall include—

(A) an identification of the State agency or

agencies that will administer the demonstration project and be the grant recipient of

funds for the State;

(B) a description of the manner in which

funds granted to a State will be expended

and a description of fiscal control, accounting, and audit procedures to ensure the proper dispersal of and accounting for funds received under this section; and

(C) such other information as the Secretary determines appropriate.

(3) CONSIDERATION OF APPLICATIONS.—In reviewing all applications received from States

desiring to establish malpractice demonstration projects under paragraph (1), the Secretary shall consider—

(A) data regarding medical malpractice

and malpractice litigation patterns in each

State;

(B) the contributions that any demonstration project will make toward reducing malpractice and costs associated with health

care injuries;

(C) diversity among the populations serviced by the systems;

(D) geographic distribution; and

(E) such other criteria as the Secretary determines appropriate.

(d) EVALUATION AND REPORTS.—

(1) BY THE STATES.—Each State receiving a

grant under this section shall conduct ongoing evaluations of the effectiveness of any

demonstration project established in such

State and shall submit an annual report to

the Secretary concerning the results of such

evaluations at such times and in such manner as the Secretary shall require.

(2) BY THE SECRETARY.—The Secretary

shall submit an annual report to Congress

concerning the fairness and effectiveness of

the demonstration projects conducted under

this section. Such report shall analyze the

reports received by the Secretary under

paragraph (1).

(e) FUNDING.—

(1) IN GENERAL.—There are authorized to be

appropriated such sums as may be necessary

to carry out the purposes of this section.

(2) LIMITATIONS ON EXPENDITURES.—

(A) ADMINISTRATIVE EXPENSES.—Not more

than 10 percent of the amount of each grant

awarded to a State under this section may be

used for administrative expenses.

(B) WAIVER OF COST LIMITATIONS.—The limitation under subparagraph (A) may be

waived as determined appropriate by the

Secretary.

(f) ELIGIBILITY FOR NO-FAULT DEMONSTRATION.—A State is eligible to receive a nofault liability demonstration grant if the application of the State under subsection (c)

includes—

(1) an identification of each qualified

health care organization selected by the

State to participate in the system, including—

(A) the location of each organization;

(B) the number of patients generally served

by each organization;

(C) the types of patients generally served

by each organization;

(D) an analysis of any characteristics of

each organization which makes such organization appropriate for participation in the

system;

(E) whether the organization is self-insured

for malpractice liability; and

(F) such other information as the Secretary determines appropriate;

(2) an identification of each qualified insurer selected by the State to participate in

the system, including—

(A) a schedule of the malpractice insurance

premiums generally charged by each insurer

under the common law tort liability system;

and

(B) such other information as the Secretary determines appropriate;

(3) a description of the procedure under

which qualified health care organizations

and insurers elect to participate in the system;

(4) a description of the system established

by the State to assure compliance with the

requirements of this section by each qualified health care organization and insurer;

and

(5) a description of procedures for the preparation and submission to the State of an

annual report by each qualified health care

organization and qualified insurer participating in a system that shall include—

(A) a description of activities conducted

under the system during the year; and

(B) the extent to which the system exceeded or failed to meet relevant performance standards including compensation for

and deterrence of medical adverse events.

(g) ELIGIBILITY FOR ENTERPRISE LIABILITY

DEMONSTRATION.—A State is eligible to receive an enterprise liability demonstration

grant if the State—

(1) has entered into an agreement with a

health plan (other than a fee-for-service

plan) operating in the State under which the

plans assumes legal liability with respect to

any medical malpractice claim arising from

the provision of (or failure to provide) services under the plan by any physician participating in the plan; and

(2) has provided that, under the law of the

State, a physician participating in a plan

that has entered into an agreement with the

State under paragraph (1) may not be liable

in damages or otherwise for such a claim and

the plan may not require such physician to

indemnify the plan for any such liability.

(h) ELIGIBILITY FOR PRACTICE GUIDELINES

DEMONSTRATION.—A State is eligible to receive a practice guidelines demonstration

grant if the law of the State provides that in

the resolution of any medical malpractice

action, compliance or non-compliance with

an appropriate practice guideline shall be admissible at trial as a rebuttable presumption

regarding medical negligence.

Mr. KENNEDY. Mr. President, at an

appropriate time on Monday, I intend

to offer two second-degree amendments

to the McConnell amendment. I have

already described them briefly; one

would clarify that this bill does not

preempt State law, while the other

would be a complete substitute consisting of the malpractice subtitle of the

Health Care Reform Act favorably reported by the Labor Committee last

year.

I will file them at this time so that

they are available for review by the

membership.

SNOWE AMENDMENT NO. 608

Ms. SNOWE proposed an amendment

to amendment No. 603 proposed by Mr.

MCCONNELL to the amendment No. 596

proposed by Mr. GORTON to the bill

H.R. 956, supra; as follows:

On p. 14, line 22, insert:

In section 15 of the amendment, strike

subsection (e) and insert the following new

subsection:

(e) LIMITATION ON AMOUNT.—

(1) IN GENERAL.—The amount of punitive

damages that may be awarded to a claimant

in a health care liability action that is subject to this title shall not exceed 2 times the

sum of—

(A) the amount awarded to the claimant

for economic loss; and

(B) the amount awarded to the claimant

for noneconomic loss.

(2) APPLICATION BY COURT.—This subsection

shall be applied by the court and the application of this subsection shall not be disclosed

to the jury.

KYL AMENDMENT NO. 609

Mr. KYL proposed an amendment to

amendment No. 603 proposed by Mr.

MCCONNELL to amendment No. 596 proposed by Mr. GORTON to the bill, H.R.

956, supra; as follows:

SEC. . FAIR COMPENSATION FOR NONECONOMIC LOSSES AND PUNITIVE

DAMAGES.

(a) FULL COMPENSATION FOR NONECONOMIC

LOSSES.—Notwithstanding any other provision of this Act, an attorney who represents,

on a contingency fee basis, a claimant in a

civil action in a Federal or State court may

not charge, demand, receive, or collect for

services rendered in connection with such action on any amount recovered by judgment

or settlement under such action for noneconomic losses in excess of 25 percent of the

first $250,000 (or portion thereof) recovered,

based on after-tax recovery.

(b) ATTORNEY FEES FOR PUNITIVE DAMAGES.—With respect to any award or settlement for punitive damages, an attorney’s

fee, if any, received by an attorney who represents, on a contingency fee basis, a claimant in a civil action in a Federal or State

court shall be established by the court based

on the work performed by the attorney, and

shall be ethical and reasonable. It shall be a

rebuttable presumption that an ethical and

reasonable attorney’s fee in such an action is

25 percent of such award for punitive damages.

(c) CONTINGENCY FEE DEFINED.—As used in

this section, the term ‘‘contingency fee’’

means any fee for professional legal services

which is, in whole or in part, contingent

upon the recovery of any amount of losses or

damages, whether through judgment or settlement.

COLORADO RIVER BASIN SALINITY

CONTROL AMENDMENTS ACT

f

DOMENICI AMENDMENT NO. 610

Mr. KYL (for Mr. DOMENICI) proposed

an amendment to the bill (S. 523) to

amend the Colorado River Basin Salinity Control Act to authorize additional

measures to carry out the control of

salinity upstream of Imperial Dam in a

cost-effective manner, and for other

purposes; as follows:

On page 7, strike ‘‘such paragraph’’ on line

1, and insert the following: ‘‘such paragraph.
April 27, 1995 CONGRESSIONAL RECORD — SENATE S5851

Notwithstanding subsection (b), the Secretary may implement the program under

paragraph 202(a)(6) only to the extent and in

such amounts as are provided in advance in

appropriations Acts.’’

PERMANENT SUBCOMMITTEE ON INVESTIGATIONS

NOTICE OF HEARINGS

fMr. ROTH. Mr. President, I would

like to announce for the information of

the Senate and the public that the Permanent Subcommittee on Investigations of the Committee on Government

Affairs, will hold hearings on the Navy

T–AO–187 Kaiser class oiler contract.

This hearing will take place on Tuesday, May 2, 1995 at 10 a.m. and on

Thursday, May 4 at 10 a.m. in room 342

of the Dirksen Senate Office Building.

For further information, please contact

Harold Damelin of the subcommittee

staff at 224–3721.

AUTHORITY FOR COMMITTEES TO

fMEET

COMMITTEE ON ENERGY AND NATURAL

RESOURCES

Mr. GORTON. Mr. President, I ask

unanimous consent that the Committee on Energy and Natural Resources

be granted permission to meet during

the session of the Senate on Thursday,

April 27, 1995, for purposes of conducting a full committee business meeting

which is scheduled to begin at 9:30 a.m.

The purpose of this meeting is to approve the creation and jurisdiction of a

new subcommittee.

The PRESIDING OFFICER. Without

objection, it is so ordered.

COMMITTEE ON ENERGY AND NATURAL

RESOURCES

Mr. GORTON. Mr. President, I ask

unanimous consent that the Committee on Energy and Natural Resources

be granted permission to meet during

the session of the Senate on Thursday,

April 27, 1995, for purposes of conducting a Full Committee hearing which is

scheduled to begin at 9:45 a.m. The purpose of this hearing is to consider S.

537 and H.R. 402, to amend the Alaska

Native Claims Settlement Act.

The PRESIDING OFFICER. Without

objection, it is so ordered.

COMMITTEE ON FINANCE

Mr. GORTON. Mr. President, I ask

unanimous consent that the Finance

Committee be permitted to meet on

Thursday, April 27, 1995, beginning at

9:30 a.m. in room SD–215, to conduct

our final hearing on welfare reform.

The PRESIDING OFFICER. Without

objection, it is so ordered.

COMMITTEE ON FOREIGN RELATIONS

Mr. GORTON. Mr. President, I ask

unanimous consent that the Committee on Foreign Relations be authorized

to meet during the session of the Senate on Thursday, April 27, 1995, at 10

a.m. to hold a hearing on The Future of

NATO.

The PRESIDING OFFICER. Without

objection, it is so ordered.

COMMITTEE ON THE JUDICIARY

Mr. GORTON. Mr. President, I ask

unanimous consent that the Committee on the Judiciary be authorized to

hold a business meeting during the session of the Senate on Thursday, April

27, 1995 at 8 a.m.

The PRESIDING OFFICER. Without

objection, it is so ordered.

COMMITTEE ON THE JUDICIARY

Mr. GORTON. Mr. President, I ask

unanimous consent that the Committee on the Judiciary be authorized to

hold a business meeting during the session of the Senate on Thursday, April

27, 1995 at 2 p.m.

The PRESIDING OFFICER. Without

objection, it is so ordered.

COMMITTEE ON SMALL BUSINESS

Mr. GORTON. Mr. President, I ask

unanimous consent that the Committee on Small Business be authorized to

hold a hearing on Thursday, April 27,

1995, at 9:30 a.m. The focus of the hearing is the Small Business Administration’s 7(a) Business Loan Program.

For further information, please contact Paul Cooksey at 224–5175.

The PRESIDING OFFICER. Without

objection, it is so ordered.

SUBCOMMITTEE ON EDUCATION

Mr. GORTON. Mr. President, I ask

unanimous consent that the Subcommittee on Education of the Committee on Labor and Human Resources

be authorized to meet for a hearing on

Overview of Vocational Education, during the session of the Senate on Thursday, April 27, 1995, at 9:30 a.m.

The PRESIDING OFFICER. Without

objection, it is so ordered.

SUBCOMMITTEE ON HOUSING OPPORTUNITY AND

COMMUNITY DEVELOPMENT

Mr. GORTON. Mr. President, I ask

unanimous consent that Subcommittee

on Housing Opportunity and Community Development, of the Committee

on Banking, Housing, and Urban Affairs be authorized to meet during the

session of the Senate on Thursday,

April 27, 1995, at 9:30 a.m., to conduct a

hearing on the Reinvention of HUD and

Redirection of Housing Policy.

The Presiding Officer. Without objection, it so ordered.

SUBCOMMITTEE ON READINESS

Mr. GORTON. Mr. President, I ask

unanimous consent that the Subcommittee on Readiness of the Committee on Armed Services be authorized to meet at 9 a.m. on Thursday,

April 27, 1995, in open session, to receive testimony on the Near and Long

Term Readiness of the Armed Forces as

It Relates to the Future Years Defense

Plan.

The PRESIDING OFFICER. Without

objection, it is so ordered.

SUBCOMMITTEE ON SUPERFUND, WASTE CONTROL

AND RISK ASSESSMENT

Mr. GORTON. Mr. President. I ask

unanimous consent that the Subcommittee on Superfund, Waste Control, and Risk Assessment be granted

permission to conduct an oversight

hearing Thursday, April 27, 9 a.m. regarding the Comprehensive Environmental Response, Compensation, and

Liability Act (CERCLA).

The PRESIDING OFFICER. Without

objection, it is so ordered.

ADDITIONAL STATEMENTS

PRESIDENTIAL SERVICE AWARD

FOR SAFEHAVEN

∑ Mr. HATFIELD. Mr. President,

today, Ms. Nellie Bradwell and Ms.

Joyce Adams are in Washington, DC,

on behalf of SAFEHAVEN of Portland,

OR, to accept a 1995 Presidential Service Award which will be presented by

President Clinton. I would like to take

a moment of the Senate’s time to congratulate the volunteers of

SAFEHAVEN, a latchkey program

serving at-risk youth ages 5 to 12 in

Portland’s inner-city.

The Points of Light Foundation,

which selects annual award winners, is

dedicated to promoting voluntarism,

increasing the activity of local volunteer centers and assuring the public

knows that volunteers are key components of a healthy and happy community. This year, 18 individuals and organizations have been selected to receive the prestigious President’s Service Award out of over 3,000 nominations.

Ms. Bradwell, Ms. Adams and all of

SAFEHAVEN’s volunteers provide a

safe and nurturing environment for atrisk youth after school and on Saturdays. The area they serve in the innernortheast part of Portland has one of

the city’s highest juvenile crime rates,

and SAFEHAVEN is attempting to

make a positive change. While helping

to meet the material needs of its participants, their program offers recreational activities, educational development and church services.

SAFEHAVEN is already making

plans to continue their services

through participants’ high school years

and provide a summer youth camp. I

am deeply grateful to all of

SAFEHAVEN’s volunteers. Serving as

teachers, mentors and friends they are

having a positive impact on Portland’s

youth and community; an impact

which is sure to be lasting.

f∑

GAMBLING

∑ Mr. SIMON. Mr. President, the Washington Monthly recently, in an editorial, had a column by Roman Genn

and a comment about gambling in the

United States and its spread.

This has been a growing phenomenon

in our country, and we have not examined what its impact will be on the future of our country.

The article points out some of the

problems.

I introduced a bill in the last session

of Congress, and I have introduced a

bill also in this session to set up a commission to look at this matter.

Obviously, we are not going to eliminate legal gambling in our society. But