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[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 2997 Introduced in Senate (IS)]

111th CONGRESS
  2d Session
                                S. 2997

  To amend title XVIII of the Social Security Act to provide for the 
 update under the Medicare physician fee schedule for years beginning 
with 2010 and to sunset the application of the sustainable growth rate 
                    formula, and for other purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                            February 4, 2010

  Mr. Wicker introduced the following bill; which was read twice and 
                  referred to the Committee on Finance

_______________________________________________________________________

                                 A BILL

 
  To amend title XVIII of the Social Security Act to provide for the 
 update under the Medicare physician fee schedule for years beginning 
with 2010 and to sunset the application of the sustainable growth rate 
                    formula, and for other purposes.

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

              TITLE I--PHYSICIAN PAYMENT UPDATE COMMISSION

SECTION 1. SHORT TITLE.

    This title may be cited as the ``Physician Payment Update 
Commission Act''.

SEC. 2. ESTABLISHMENT OF PHYSICIAN PAYMENT UPDATE COMMISSION.

    (a) Medicare Physician Fee Schedule Update and Sunset of Medicare 
Sustainable Growth Rate Formula.--
            (1) Update for 2010 and 2011.--Section 1848(d)(10) of the 
        Social Security Act (42 U.S.C. 1395w-4(d)(10)) is amended to 
        read as follows:
            ``(10) Update for 2010 and 2011.--
                    ``(A) In general.--The update to the single 
                conversion factor established in paragraph (1)(C) for 
                2010 and 2011 shall be 0 percent.
                    ``(B) No effect on computation of conversion factor 
                for 2012 and subsequent years.--The conversion factor 
                under this subsection shall be computed under paragraph 
                (1)(A) for 2012 and subsequent years as if subparagraph 
                (A) had never applied.''.
            (2) Sunset of medicare sustainable growth rate formula.--
        Effective January 1, 2012, subsection (f) of section 1848 of 
        the Social Security Act (42 U.S.C. 1395w-4) is repealed.
    (b) Establishment of Physician Payment Update Commission.--
            (1) In general.--There is established a commission to be 
        known as the ``Physician Payment Update Commission'' (referred 
        to in this section as the ``Commission'').
            (2) Membership.--
                    (A) Composition.--The Commission shall be composed 
                of 17 members appointed by the Comptroller General of 
                the United States, upon the recommendation of the 
                majority and minority leaders of the Senate and the 
                Speaker and minority leader of the House of 
                Representatives.
                    (B) Date of appointments.--Members of the 
                Commission shall be appointed not later than 2 months 
                after the date of enactment of this Act.
            (3) Qualifications.--
                    (A) In general.--The membership of the Commission 
                shall include individuals with national recognition for 
                their expertise in health finance and economics, 
                actuarial science, integrated delivery systems, 
                allopathic and osteopathic medicine and other areas of 
                health services, and other related fields, who provide 
                a mix of different professionals, broad geographic 
                representation, and a balance between urban and rural 
                representatives.
                    (B) Inclusion.--The members of the Commission shall 
                include (but not be limited to) physicians and other 
                health professionals, employers, third-party payers, 
                individuals skilled in the conduct and interpretation 
                of biomedical, health services, and health economics 
                research and technology assessment. Such membership 
                shall also include representatives of consumers and the 
                elderly.
                    (C) Majority physicians and other health 
                professionals.--Individuals who are physicians or other 
                health professionals shall constitute a majority of the 
                membership of the Commission.
            (4) Term; vacancies.--
                    (A) Term.--A member shall be appointed for the life 
                of the Commission.
                    (B) Vacancies.--A vacancy on the Commission--
                            (i) shall not affect the powers of the 
                        Commission; and
                            (ii) shall be filled in the same manner as 
                        the original appointment was made.
            (5) Meetings.--The Commission shall meet at the call of the 
        Chairperson.
            (6) Quorum.--A majority of the members of the Commission 
        shall constitute a quorum, but a lesser number of members may 
        hold hearings.
            (7) Chairperson.--The Comptroller General shall designate a 
        member of the Commission, at the time of the appointment of the 
        member, as Chairperson.
    (c) Duties.--
            (1) Study.--The Commission shall conduct a study of all 
        matters relating to payment rates under the Medicare physician 
        fee schedule under section 1848 of the Social Security Act (42 
        U.S.C. 1395w-4).
            (2) Recommendations.--The Commission shall develop 
        recommendations on the establishment of a new physician payment 
        system under the Medicare program that would appropriately 
        reimburse physicians by keeping pace with increases in medical 
        practice costs and providing stable, positive Medicare updates.
            (3) Report.--Not later than December 1, 2010, the 
        Commission shall submit to the appropriate Committees of 
        Congress and the Medicare Payment Advisory Commission--
                    (A) a detailed statement of the findings and 
                conclusions of the Commission;
                    (B) the recommendations of the Commission for such 
                legislation and administrative actions as the 
                Commission considers appropriate (including proposed 
                legislative language to carry out such 
                recommendations); and
                    (C) a long-term CBO cost estimate regarding such 
                recommendations (as described under subsection (i)).
    (d) Powers.--
            (1) Hearings.--The Commission may hold such hearings, meet 
        and act at such times and places, take such testimony, and 
        receive such evidence as the Commission considers advisable to 
        carry out this section.
            (2) Information from federal agencies.--
                    (A) In general.--The Commission may secure directly 
                from a Federal agency such information as the 
                Commission considers necessary to carry out this 
                section.
                    (B) Provision of information.--On request of the 
                Chairperson of the Commission, the head of the agency 
                shall provide the information to the Commission.
            (3) Postal services.--The Commission may use the United 
        States mails in the same manner and under the same conditions 
        as other agencies of the Federal Government.
    (e) Commission Personnel Matters.--
            (1) Compensation of members.--
                    (A) In general.--Members of the Commission shall 
                serve without compensation in addition to the 
                compensation received for the services of the member as 
                an officer or employee of the Federal Government.
                    (B) Travel expenses.--A member of the Commission 
                shall be allowed travel expenses, including per diem in 
                lieu of subsistence, at rates authorized for an 
                employee of an agency under subchapter I of chapter 57 
                of title 5, United States Code, while away from the 
                home or regular place of business of the member in the 
                performance of the duties of the Commission.
            (2) Staff and support services.--
                    (A) Executive director.--The Chairperson shall 
                appoint an executive director of the Commission.
                    (B) Staff.--With the approval of the Commission, 
                the executive director may appoint such personnel as 
                the executive director considers appropriate.
                    (C) Applicability of civil service laws.--The staff 
                of the Commission shall be appointed without regard to 
                the provisions of title 5, United States Code, 
                governing appointments in the competitive service, and 
                shall be paid without regard to the provisions of 
                chapter 51 and subchapter III of chapter 53 of such 
                title (relating to classification and General Schedule 
                pay rates).
                    (D) Experts and consultants.--With the approval of 
                the Commission, the executive director may procure 
                temporary and intermittent services under section 
                3109(b) of title 5, United States Code.
    (f) Termination of Commission.--The Commission shall terminate 30 
days after the date on which the Commission submits its report under 
subsection (c)(3).
    (g) Review and Response to Recommendations by the Medicare Payment 
Advisory Commission.--
            (1) In general.--Not later than February 1, 2011, the 
        Medicare Payment Advisory Commission shall--
                    (A) review the recommendations included in the 
                report submitted under subsection (c)(3);
                    (B) examine the budget consequences of such 
                recommendations, directly or through consultation with 
                appropriate expert entities; and
                    (C) submit to the appropriate Committees of 
                Congress a report on such review.
            (2) Contents of report on review of commission 
        recommendations.--The report submitted under paragraph (1)(C) 
        shall include--
                    (A) if the Medicare Payment Advisory Commission 
                supports the recommendations of the Commission, the 
                reasons for such support; or
                    (B) if the Medicare Payment Advisory Commission 
                does not support such recommendations, the 
                recommendations of the Medicare Payment Advisory 
                Commission, together with an explanation as to why the 
                Medicare Payment Advisory Commission does not support 
                the recommendations of the Commission.
    (h) Authorization of Appropriations.--There are authorized to be 
appropriated such sums as may be necessary for the Commission to carry 
out this section. Such appropriation shall be payable from the Federal 
Supplementary Medical Insurance Trust Fund under section 1841 of the 
Social Security Act (42 U.S.C. 1395t).
    (i) Long-Term CBO Cost Estimate.--
            (1) Preparation and submission.--When the Commission 
        submits a written request to the Director of the Congressional 
        Budget Office for a long-term CBO cost estimate of recommended 
        legislation or administrative actions (as described under 
        subsection (c)(3)), the Director shall prepare the estimate and 
        have it published in the Congressional Record as expeditiously 
        as possible.
            (2) Content.--A long-term CBO cost estimate shall include--
                    (A) an estimate of the cost of each provision (if 
                practicable) or group of provisions of the recommended 
                legislation or administrative actions for first fiscal 
                year it would take effect and for each of the 49 fiscal 
                years thereafter; and
                    (B) a statement of any estimated future costs not 
                reflected by the estimate described in subparagraph 
                (A).
            (3) Form.--To the extent that a long-term CBO cost estimate 
        presented in dollars is impracticable, the Director of the 
        Congressional Budget Office may instead present the estimate in 
        terms of percentages of gross domestic product, with rounding 
        to the nearest \1/10\ of 1 percent of gross domestic product.
            (4) Limitations on discretionary spending.--A long-term CBO 
        cost estimate shall only consider the effects of provisions 
        affecting revenues and direct spending (as defined by the 
        Balanced Budget and Emergency Deficit Control Act of 1985), and 
        shall not assume that any changes in outlays will result from 
        limitations on, or reductions in, annual appropriations.
    (j) Expedited Consideration of Commission Recommendations.--
            (1) Introduction.--
                    (A) In general.--The proposed legislative language 
                contained in the report submitted pursuant to 
                subsection (c)(3) (referred to in this subsection as 
                the ``Commission bill'') shall be introduced within the 
                first 10 calendar days of the 112th Congress (or on the 
                first session day thereafter) in the House of 
                Representatives and in the Senate by the majority 
                leader of each House of Congress, for himself, the 
                minority leader of each House of Congress, for himself, 
                or any member of the House designated by the majority 
                leader or minority leader. If the Commission bill is 
                not introduced in accordance with the preceding 
                sentence in either House of Congress, then any Member 
                of that House may introduce the Commission bill on any 
                day thereafter. Upon introduction, the Commission bill 
                shall be referred to the appropriate committees under 
                subparagraph (B).
                    (B) Committee consideration.--A Commission bill 
                introduced in either House of Congress shall be jointly 
                referred to the committee or committees of 
                jurisdiction, which shall report the bill without any 
                revision and with a favorable recommendation, an 
                unfavorable recommendation, or without recommendation, 
                not later than 10 calendar days after the date of 
                introduction of the bill in that House. If any 
                committee fails to report the bill within that period, 
                that committee shall be automatically discharged from 
                consideration of the bill, and the bill shall be placed 
                on the appropriate calendar.
            (2) Expedited procedure.--
                    (A) In the house of representatives.--
                            (i) In general.--Not later than 5 days of 
                        session after the date on which a Commission 
                        bill is reported or discharged from all 
                        committees to which it was referred, the 
                        majority leader of the House of Representatives 
                        or the majority leader's designee shall move to 
                        proceed to the consideration of the Commission 
                        bill. It shall also be in order for any Member 
                        of the House of Representatives to move to 
                        proceed to the consideration of the Commission 
                        bill at any time after the conclusion of such 
                        5-day period.
                            (ii) Motion to proceed.--A motion to 
                        proceed to the consideration of the Commission 
                        bill is highly privileged in the House of 
                        Representatives and is not debatable. The 
                        motion is not subject to amendment or to a 
                        motion to postpone consideration of the 
                        Commission bill. A motion to proceed to the 
                        consideration of other business shall not be in 
                        order. A motion to reconsider the vote by which 
                        the motion to proceed is agreed to or not 
                        agreed to shall not be in order. If the motion 
                        to proceed is agreed to, the House of 
                        Representatives shall immediately proceed to 
                        consideration of the Commission bill without 
                        intervening motion, order, or other business, 
                        and the Commission bill shall remain the 
                        unfinished business of the House of 
                        Representatives until disposed of.
                            (iii) Limits on debate.--Debate in the 
                        House of Representatives on a Commission bill 
                        under this paragraph shall not exceed a total 
                        of 100 hours, which shall be divided equally 
                        between those favoring and those opposing the 
                        bill. A motion further to limit debate is in 
                        order and shall not be debatable. It shall not 
                        be in order to move to recommit a Commission 
                        bill under this paragraph or to move to 
                        reconsider the vote by which the bill is agreed 
                        to or disagreed to.
                            (iv) Appeals.--Appeals from decisions of 
                        the chair relating to the application of the 
                        Rules of the House of Representatives to the 
                        procedure relating to a Commission bill shall 
                        be decided without debate.
                            (v) Application of house rules.--Except to 
                        the extent specifically provided in this 
                        paragraph, consideration of a Commission bill 
                        shall be governed by the Rules of the House of 
                        Representatives. It shall not be in order in 
                        the House of Representatives to consider any 
                        Commission bill introduced pursuant to the 
                        provisions of this subsection under a 
                        suspension of the rules or under a special 
                        rule.
                            (vi) No amendments.--No amendment to the 
                        Commission bill shall be in order in the House 
                        of Representatives.
                            (vii) Vote on final passage.--In the House 
                        of Representatives, immediately following the 
                        conclusion of consideration of the Commission 
                        bill, the vote on final passage of the 
                        Commission bill shall occur without any 
                        intervening action or motion, requiring an 
                        affirmative vote of \3/5\ of the Members, duly 
                        chosen and sworn. If the Commission bill is 
                        passed, the Clerk of the House of 
                        Representatives shall cause the bill to be 
                        transmitted to the Senate before the close of 
                        the next day of session of the House.
                    (B) In the senate.--
                            (i) In general.--Not later than 5 days of 
                        session after the date on which a Commission 
                        bill is reported or discharged from all 
                        committees to which it was referred, the 
                        majority leader of the Senate or the majority 
                        leader's designee shall move to proceed to the 
                        consideration of the Commission bill. It shall 
                        also be in order for any Member of the Senate 
                        to move to proceed to the consideration of the 
                        Commission bill at any time after the 
                        conclusion of such 5-day period.
                            (ii) Motion to proceed.--A motion to 
                        proceed to the consideration of the Commission 
                        bill is privileged in the Senate and is not 
                        debatable. The motion is not subject to 
                        amendment or to a motion to postpone 
                        consideration of the Commission bill. A motion 
                        to proceed to consideration of the Commission 
                        bill may be made even though a previous motion 
                        to the same effect has been disagreed to. A 
                        motion to proceed to the consideration of other 
                        business shall not be in order. A motion to 
                        reconsider the vote by which the motion to 
                        proceed is agreed to or not agreed to shall not 
                        be in order. If the motion to proceed is agreed 
                        to, the Senate shall immediately proceed to 
                        consideration of the Commission bill without 
                        intervening motion, order, or other business, 
                        and the Commission bill shall remain the 
                        unfinished business of the Senate until 
                        disposed of.
                            (iii) Limits on debate.--In the Senate, 
                        consideration of the Commission bill and on all 
                        debatable motions and appeals in connection 
                        therewith shall not exceed a total of 100 
                        hours, which shall be divided equally between 
                        those favoring and those opposing the 
                        Commission bill. A motion further to limit 
                        debate on the Commission bill is in order and 
                        is not debatable. Any debatable motion or 
                        appeal is debatable for not to exceed 1 hour, 
                        to be divided equally between those favoring 
                        and those opposing the motion or appeal. All 
                        time used for consideration of the Commission 
                        bill, including time used for quorum calls and 
                        voting, shall be counted against the total 100 
                        hours of consideration.
                            (iv) No amendments.--No amendment to the 
                        Commission bill shall be in order in the 
                        Senate.
                            (v) Motion to recommit.--A motion to 
                        recommit a Commission bill shall not be in 
                        order under this paragraph.
                            (vi) Vote on final passage.--In the Senate, 
                        immediately following the conclusion of 
                        consideration of the Commission bill and a 
                        request to establish the presence of a quorum, 
                        the vote on final passage of the Commission 
                        bill shall occur and shall require an 
                        affirmative vote of \3/5\ of the Members, duly 
                        chosen and sworn.
                            (vii) Other motions not in order.--A motion 
                        to postpone or a motion to proceed to the 
                        consideration of other business is not in order 
                        in the Senate. A motion to reconsider the vote 
                        by which the Commission bill is agreed to or 
                        not agreed to is not in order in the Senate.
                            (viii) Consideration of the house bill.--
                                    (I) In general.--If the Senate has 
                                received the House companion bill to 
                                the Commission bill introduced in the 
                                Senate prior to the vote required under 
                                clause (vi) and the House companion 
                                bill is identical to the Commission 
                                bill introduced in the Senate, then the 
                                Senate shall consider, and the vote 
                                under clause (vi) shall occur on, the 
                                House companion bill.
                                    (II) Procedure after vote on senate 
                                bill.--If the Senate votes, pursuant to 
                                clause (vi), on the bill introduced in 
                                the Senate, the Senate bill shall be 
                                held pending receipt of the House 
                                message on the bill. Upon receipt of 
                                the House companion bill, if the House 
                                bill is identical to the Senate bill, 
                                the House bill shall be deemed to be 
                                considered, read for the third time, 
                                and the vote on passage of the Senate 
                                bill shall be considered to be the vote 
                                on the bill received from the House.
                    (C) No suspension.--No motion to suspend the 
                application of this paragraph shall be in order in the 
                Senate or in the House of Representatives.

                TITLE II--MEDICAL CARE ACCESS PROTECTION

SEC. 101. SHORT TITLE.

    This title may be cited as the ``Medical Care Access Protection Act 
of 2009'' or the ``MCAP Act''.

SEC. 102. FINDINGS AND PURPOSE.

    (a) Findings.--
            (1) Effect on health care access and costs.--Congress finds 
        that our current civil justice system is adversely affecting 
        patient access to health care services, better patient care, 
        and cost-efficient health care, in that the health care 
        liability system is a costly and ineffective mechanism for 
        resolving claims of health care liability and compensating 
        injured patients, and is a deterrent to the sharing of 
        information among health care professionals which impedes 
        efforts to improve patient safety and quality of care.
            (2) Effect on interstate commerce.--Congress finds that the 
        health care and insurance industries are industries affecting 
        interstate commerce and the health care liability litigation 
        systems existing throughout the United States are activities 
        that affect interstate commerce by contributing to the high 
        costs of health care and premiums for health care liability 
        insurance purchased by health care system providers.
            (3) Effect on federal spending.--Congress finds that the 
        health care liability litigation systems existing throughout 
        the United States have a significant effect on the amount, 
        distribution, and use of Federal funds because of--
                    (A) the large number of individuals who receive 
                health care benefits under programs operated or 
                financed by the Federal Government;
                    (B) the large number of individuals who benefit 
                because of the exclusion from Federal taxes of the 
                amounts spent to provide them with health insurance 
                benefits; and
                    (C) the large number of health care providers who 
                provide items or services for which the Federal 
                Government makes payments.
    (b) Purpose.--It is the purpose of this title to implement 
reasonable, comprehensive, and effective health care liability reforms 
designed to--
            (1) improve the availability of health care services in 
        cases in which health care liability actions have been shown to 
        be a factor in the decreased availability of services;
            (2) reduce the incidence of ``defensive medicine'' and 
        lower the cost of health care liability insurance, all of which 
        contribute to the escalation of health care costs;
            (3) ensure that persons with meritorious health care injury 
        claims receive fair and adequate compensation, including 
        reasonable noneconomic damages;
            (4) improve the fairness and cost-effectiveness of our 
        current health care liability system to resolve disputes over, 
        and provide compensation for, health care liability by reducing 
        uncertainty in the amount of compensation provided to injured 
        individuals; and
            (5) provide an increased sharing of information in the 
        health care system which will reduce unintended injury and 
        improve patient care.

SEC. 103. DEFINITIONS.

    In this title:
            (1) Alternative dispute resolution system; adr.--The term 
        ``alternative dispute resolution system'' or ``ADR'' means a 
        system that provides for the resolution of health care lawsuits 
        in a manner other than through a civil action brought in a 
        State or Federal court.
            (2) Claimant.--The term ``claimant'' means any person who 
        brings a health care lawsuit, including a person who asserts or 
        claims a right to legal or equitable contribution, indemnity or 
        subrogation, arising out of a health care liability claim or 
        action, and any person on whose behalf such a claim is asserted 
        or such an action is brought, whether deceased, incompetent, or 
        a minor.
            (3) Collateral source benefits.--The term ``collateral 
        source benefits'' means any amount paid or reasonably likely to 
        be paid in the future to or on behalf of the claimant, or any 
        service, product or other benefit provided or reasonably likely 
        to be provided in the future to or on behalf of the claimant, 
        as a result of the injury or wrongful death, pursuant to--
                    (A) any State or Federal health, sickness, income-
                disability, accident, or workers' compensation law;
                    (B) any health, sickness, income-disability, or 
                accident insurance that provides health benefits or 
                income-disability coverage;
                    (C) any contract or agreement of any group, 
                organization, partnership, or corporation to provide, 
                pay for, or reimburse the cost of medical, hospital, 
                dental, or income disability benefits; and
                    (D) any other publicly or privately funded program.
            (4) Compensatory damages.--The term ``compensatory 
        damages'' means objectively verifiable monetary losses incurred 
        as a result of the provision of, use of, or payment for (or 
        failure to provide, use, or pay for) health care services or 
        medical products, such as past and future medical expenses, 
        loss of past and future earnings, cost of obtaining domestic 
        services, loss of employment, and loss of business or 
        employment opportunities, damages for physical and emotional 
        pain, suffering, inconvenience, physical impairment, mental 
        anguish, disfigurement, loss of enjoyment of life, loss of 
        society and companionship, loss of consortium (other than loss 
        of domestic service), hedonic damages, injury to reputation, 
        and all other nonpecuniary losses of any kind or nature. Such 
        term includes economic damages and noneconomic damages, as such 
        terms are defined in this section.
            (5) Contingent fee.--The term ``contingent fee'' includes 
        all compensation to any person or persons which is payable only 
        if a recovery is effected on behalf of one or more claimants.
            (6) Economic damages.--The term ``economic damages'' means 
        objectively verifiable monetary losses incurred as a result of 
        the provision of, use of, or payment for (or failure to 
        provide, use, or pay for) health care services or medical 
        products, such as past and future medical expenses, loss of 
        past and future earnings, cost of obtaining domestic services, 
        loss of employment, and loss of business or employment 
        opportunities.
            (7) Health care goods or services.--The term ``health care 
        goods or services'' means any goods or services provided by a 
        health care institution, provider, or by any individual working 
        under the supervision of a health care provider, that relates 
        to the diagnosis, prevention, care, or treatment of any human 
        disease or impairment, or the assessment of the health of human 
        beings.
            (8) Health care institution.--The term ``health care 
        institution'' means any entity licensed under Federal or State 
        law to provide health care services (including but not limited 
        to ambulatory surgical centers, assisted living facilities, 
        emergency medical services providers, hospices, hospitals and 
        hospital systems, nursing homes, or other entities licensed to 
        provide such services).
            (9) Health care lawsuit.--The term ``health care lawsuit'' 
        means any health care liability claim concerning the provision 
        of health care goods or services affecting interstate commerce, 
        or any health care liability action concerning the provision of 
        (or the failure to provide) health care goods or services 
        affecting interstate commerce, brought in a State or Federal 
        court or pursuant to an alternative dispute resolution system, 
        against a health care provider or a health care institution 
        regardless of the theory of liability on which the claim is 
        based, or the number of claimants, plaintiffs, defendants, or 
        other parties, or the number of claims or causes of action, in 
        which the claimant alleges a health care liability claim.
            (10) Health care liability action.--The term ``health care 
        liability action'' means a civil action brought in a State or 
        Federal Court or pursuant to an alternative dispute resolution 
        system, against a health care provider or a health care 
        institution regardless of the theory of liability on which the 
        claim is based, or the number of plaintiffs, defendants, or 
        other parties, or the number of causes of action, in which the 
        claimant alleges a health care liability claim.
            (11) Health care liability claim.--The term ``health care 
        liability claim'' means a demand by any person, whether or not 
        pursuant to ADR, against a health care provider or health care 
        institution, including third-party claims, cross-claims, 
        counter-claims, or contribution claims, which are based upon 
        the provision of, use of, or payment for (or the failure to 
        provide, use, or pay for) health care services, regardless of 
        the theory of liability on which the claim is based, or the 
        number of plaintiffs, defendants, or other parties, or the 
        number of causes of action.
            (12) Health care provider.--
                    (A) In general.--The term ``health care provider'' 
                means any person (including but not limited to a 
                physician (as defined by section 1861(r) of the Social 
                Security Act (42 U.S.C. 1395x(r)), registered nurse, 
                dentist, podiatrist, pharmacist, chiropractor, or 
                optometrist) required by State or Federal law to be 
                licensed, registered, or certified to provide health 
                care services, and being either so licensed, 
                registered, or certified, or exempted from such 
                requirement by other statute or regulation.
                    (B) Treatment of certain professional 
                associations.--For purposes of this title, a 
                professional association that is organized under State 
                law by an individual physician or group of physicians, 
                a partnership or limited liability partnership formed 
                by a group of physicians, a nonprofit health 
                corporation certified under State law, or a company 
                formed by a group of physicians under State law shall 
                be treated as a health care provider under subparagraph 
                (A).
            (13) Malicious intent to injure.--The term ``malicious 
        intent to injure'' means intentionally causing or attempting to 
        cause physical injury other than providing health care goods or 
        services.
            (14) Noneconomic damages.--The term ``noneconomic damages'' 
        means damages for physical and emotional pain, suffering, 
        inconvenience, physical impairment, mental anguish, 
        disfigurement, loss of enjoyment of life, loss of society and 
        companionship, loss of consortium (other than loss of domestic 
        service), hedonic damages, injury to reputation, and all other 
        nonpecuniary losses of any kind or nature.
            (15) Punitive damages.--The term ``punitive damages'' means 
        damages awarded, for the purpose of punishment or deterrence, 
        and not solely for compensatory purposes, against a health care 
        provider or health care institution. Punitive damages are 
        neither economic nor noneconomic damages.
            (16) Recovery.--The term ``recovery'' means the net sum 
        recovered after deducting any disbursements or costs incurred 
        in connection with prosecution or settlement of the claim, 
        including all costs paid or advanced by any person. Costs of 
        health care incurred by the plaintiff and the attorneys' office 
        overhead costs or charges for legal services are not deductible 
        disbursements or costs for such purpose.
            (17) State.--The term ``State'' means each of the several 
        States, the District of Columbia, the Commonwealth of Puerto 
        Rico, the Virgin Islands, Guam, American Samoa, the Northern 
        Mariana Islands, the Trust Territory of the Pacific Islands, 
        and any other territory or possession of the United States, or 
        any political subdivision thereof.

SEC. 104. ENCOURAGING SPEEDY RESOLUTION OF CLAIMS.

    (a) In General.--Except as otherwise provided for in this section, 
the time for the commencement of a health care lawsuit shall be 3 years 
after the date of manifestation of injury or 1 year after the claimant 
discovers, or through the use of reasonable diligence should have 
discovered, the injury, whichever occurs first.
    (b) General Exception.--The time for the commencement of a health 
care lawsuit shall not exceed 3 years after the date of manifestation 
of injury unless the tolling of time was delayed as a result of--
            (1) fraud;
            (2) intentional concealment; or
            (3) the presence of a foreign body, which has no 
        therapeutic or diagnostic purpose or effect, in the person of 
        the injured person.
    (c) Minors.--An action by a minor shall be commenced within 3 years 
from the date of the alleged manifestation of injury except that if 
such minor is under the full age of 6 years, such action shall be 
commenced within 3 years of the manifestation of injury, or prior to 
the eighth birthday of the minor, whichever provides a longer period. 
Such time limitation shall be tolled for minors for any period during 
which a parent or guardian and a health care provider or health care 
institution have committed fraud or collusion in the failure to bring 
an action on behalf of the injured minor.
    (d) Rule 11 Sanctions.--Whenever a Federal or State court 
determines (whether by motion of the parties or whether on the motion 
of the court) that there has been a violation of Rule 11 of the Federal 
Rules of Civil Procedure (or a similar violation of applicable State 
court rules) in a health care liability action to which this title 
applies, the court shall impose upon the attorneys, law firms, or pro 
se litigants that have violated Rule 11 or are responsible for the 
violation, an appropriate sanction, which shall include an order to pay 
the other party or parties for the reasonable expenses incurred as a 
direct result of the filing of the pleading, motion, or other paper 
that is the subject of the violation, including a reasonable attorneys' 
fee. Such sanction shall be sufficient to deter repetition of such 
conduct or comparable conduct by others similarly situated, and to 
compensate the party or parties injured by such conduct.

SEC. 105. COMPENSATING PATIENT INJURY.

    (a) Unlimited Amount of Damages for Actual Economic Losses in 
Health Care Lawsuits.--In any health care lawsuit, nothing in this 
title shall limit the recovery by a claimant of the full amount of the 
available economic damages, notwithstanding the limitation contained in 
subsection (b).
    (b) Additional Noneconomic Damages.--
            (1) Health care providers.--In any health care lawsuit 
        where final judgment is rendered against a health care 
        provider, the amount of noneconomic damages recovered from the 
        provider, if otherwise available under applicable Federal or 
        State law, may be as much as $250,000, regardless of the number 
        of parties other than a health care institution against whom 
        the action is brought or the number of separate claims or 
        actions brought with respect to the same occurrence.
            (2) Health care institutions.--
                    (A) Single institution.--In any health care lawsuit 
                where final judgment is rendered against a single 
                health care institution, the amount of noneconomic 
                damages recovered from the institution, if otherwise 
                available under applicable Federal or State law, may be 
                as much as $250,000, regardless of the number of 
                parties against whom the action is brought or the 
                number of separate claims or actions brought with 
                respect to the same occurrence.
                    (B) Multiple institutions.--In any health care 
                lawsuit where final judgment is rendered against more 
                than one health care institution, the amount of 
                noneconomic damages recovered from each institution, if 
                otherwise available under applicable Federal or State 
                law, may be as much as $250,000, regardless of the 
                number of parties against whom the action is brought or 
                the number of separate claims or actions brought with 
                respect to the same occurrence, except that the total 
                amount recovered from all such institutions in such 
                lawsuit shall not exceed $500,000.
    (c) No Discount of Award for Noneconomic Damages.--In any health 
care lawsuit--
            (1) an award for future noneconomic damages shall not be 
        discounted to present value;
            (2) the jury shall not be informed about the maximum award 
        for noneconomic damages under subsection (b);
            (3) an award for noneconomic damages in excess of the 
        limitations provided for in subsection (b) shall be reduced 
        either before the entry of judgment, or by amendment of the 
        judgment after entry of judgment, and such reduction shall be 
        made before accounting for any other reduction in damages 
        required by law; and
            (4) if separate awards are rendered for past and future 
        noneconomic damages and the combined awards exceed the 
        limitations described in subsection (b), the future noneconomic 
        damages shall be reduced first.
    (d) Fair Share Rule.--In any health care lawsuit, each party shall 
be liable for that party's several share of any damages only and not 
for the share of any other person. Each party shall be liable only for 
the amount of damages allocated to such party in direct proportion to 
such party's percentage of responsibility. A separate judgment shall be 
rendered against each such party for the amount allocated to such 
party. For purposes of this section, the trier of fact shall determine 
the proportion of responsibility of each party for the claimant's harm.

SEC. 106. MAXIMIZING PATIENT RECOVERY.

    (a) Court Supervision of Share of Damages Actually Paid to 
Claimants.--
            (1) In general.--In any health care lawsuit, the court 
        shall supervise the arrangements for payment of damages to 
        protect against conflicts of interest that may have the effect 
        of reducing the amount of damages awarded that are actually 
        paid to claimants.
            (2) Contingency fees.--
                    (A) In general.--In any health care lawsuit in 
                which the attorney for a party claims a financial stake 
                in the outcome by virtue of a contingent fee, the court 
                shall have the power to restrict the payment of a 
                claimant's damage recovery to such attorney, and to 
                redirect such damages to the claimant based upon the 
                interests of justice and principles of equity.
                    (B) Limitation.--The total of all contingent fees 
                for representing all claimants in a health care lawsuit 
                shall not exceed the following limits:
                            (i) 40 percent of the first $50,000 
                        recovered by the claimant(s).
                            (ii) 33\1/3\ percent of the next $50,000 
                        recovered by the claimant(s).
                            (iii) 25 percent of the next $500,000 
                        recovered by the claimant(s).
                            (iv) 15 percent of any amount by which the 
                        recovery by the claimant(s) is in excess of 
                        $600,000.
    (b) Applicability.--
            (1) In general.--The limitations in subsection (a) shall 
        apply whether the recovery is by judgment, settlement, 
        mediation, arbitration, or any other form of alternative 
        dispute resolution.
            (2) Minors.--In a health care lawsuit involving a minor or 
        incompetent person, a court retains the authority to authorize 
        or approve a fee that is less than the maximum permitted under 
        this section.
    (c) Expert Witnesses.--
            (1) Requirement.--No individual shall be qualified to 
        testify as an expert witness concerning issues of negligence in 
        any health care lawsuit against a defendant unless such 
        individual--
                    (A) except as required under paragraph (2), is a 
                health care professional who--
                            (i) is appropriately credentialed or 
                        licensed in 1 or more States to deliver health 
                        care services; and
                            (ii) typically treats the diagnosis or 
                        condition or provides the type of treatment 
                        under review; and
                    (B) can demonstrate by competent evidence that, as 
                a result of training, education, knowledge, and 
                experience in the evaluation, diagnosis, and treatment 
                of the disease or injury which is the subject matter of 
                the lawsuit against the defendant, the individual was 
                substantially familiar with applicable standards of 
                care and practice as they relate to the act or omission 
                which is the subject of the lawsuit on the date of the 
                incident.
            (2) Physician review.--In a health care lawsuit, if the 
        claim of the plaintiff involved treatment that is recommended 
        or provided by a physician (allopathic or osteopathic), an 
        individual shall not be qualified to be an expert witness under 
        this subsection with respect to issues of negligence concerning 
        such treatment unless such individual is a physician.
            (3) Specialties and subspecialties.--With respect to a 
        lawsuit described in paragraph (1), a court shall not permit an 
        expert in one medical specialty or subspecialty to testify 
        against a defendant in another medical specialty or 
        subspecialty unless, in addition to a showing of substantial 
        familiarity in accordance with paragraph (1)(B), there is a 
        showing that the standards of care and practice in the two 
        specialty or subspecialty fields are similar.
            (4) Limitation.--The limitations in this subsection shall 
        not apply to expert witnesses testifying as to the degree or 
        permanency of medical or physical impairment.

SEC. 107. ADDITIONAL HEALTH BENEFITS.

    (a) In General.--The amount of any damages received by a claimant 
in any health care lawsuit shall be reduced by the court by the amount 
of any collateral source benefits to which the claimant is entitled, 
less any insurance premiums or other payments made by the claimant (or 
by the spouse, parent, child, or legal guardian of the claimant) to 
obtain or secure such benefits.
    (b) Preservation of Current Law.--Where a payor of collateral 
source benefits has a right of recovery by reimbursement or subrogation 
and such right is permitted under Federal or State law, subsection (a) 
shall not apply.
    (c) Application of Provision.--This section shall apply to any 
health care lawsuit that is settled or resolved by a fact finder.

SEC. 108. PUNITIVE DAMAGES.

    (a) Punitive Damages Permitted.--
            (1) In general.--Punitive damages may, if otherwise 
        available under applicable State or Federal law, be awarded 
        against any person in a health care lawsuit only if it is 
        proven by clear and convincing evidence that such person acted 
        with malicious intent to injure the claimant, or that such 
        person deliberately failed to avoid unnecessary injury that 
        such person knew the claimant was substantially certain to 
        suffer.
            (2) Filing of lawsuit.--No demand for punitive damages 
        shall be included in a health care lawsuit as initially filed. 
        A court may allow a claimant to file an amended pleading for 
        punitive damages only upon a motion by the claimant and after a 
        finding by the court, upon review of supporting and opposing 
        affidavits or after a hearing, after weighing the evidence, 
        that the claimant has established by a substantial probability 
        that the claimant will prevail on the claim for punitive 
        damages.
            (3) Separate proceeding.--At the request of any party in a 
        health care lawsuit, the trier of fact shall consider in a 
        separate proceeding--
                    (A) whether punitive damages are to be awarded and 
                the amount of such award; and
                    (B) the amount of punitive damages following a 
                determination of punitive liability.
        If a separate proceeding is requested, evidence relevant only 
        to the claim for punitive damages, as determined by applicable 
        State law, shall be inadmissible in any proceeding to determine 
        whether compensatory damages are to be awarded.
            (4) Limitation where no compensatory damages are awarded.--
        In any health care lawsuit where no judgment for compensatory 
        damages is rendered against a person, no punitive damages may 
        be awarded with respect to the claim in such lawsuit against 
        such person.
    (b) Determining Amount of Punitive Damages.--
            (1) Factors considered.--In determining the amount of 
        punitive damages under this section, the trier of fact shall 
        consider only the following:
                    (A) the severity of the harm caused by the conduct 
                of such party;
                    (B) the duration of the conduct or any concealment 
                of it by such party;
                    (C) the profitability of the conduct to such party;
                    (D) the number of products sold or medical 
                procedures rendered for compensation, as the case may 
                be, by such party, of the kind causing the harm 
                complained of by the claimant;
                    (E) any criminal penalties imposed on such party, 
                as a result of the conduct complained of by the 
                claimant; and
                    (F) the amount of any civil fines assessed against 
                such party as a result of the conduct complained of by 
                the claimant.
            (2) Maximum award.--The amount of punitive damages awarded 
        in a health care lawsuit may not exceed an amount equal to two 
        times the amount of economic damages awarded in the lawsuit or 
        $250,000, whichever is greater. The jury shall not be informed 
        of the limitation under the preceding sentence.
    (c) Liability of Health Care Providers.--
            (1) In general.--A health care provider who prescribes, or 
        who dispenses pursuant to a prescription, a drug, biological 
        product, or medical device approved by the Food and Drug 
        Administration, for an approved indication of the drug, 
        biological product, or medical device, shall not be named as a 
        party to a product liability lawsuit invoking such drug, 
        biological product, or medical device and shall not be liable 
        to a claimant in a class action lawsuit against the 
        manufacturer, distributor, or product seller of such drug, 
        biological product, or medical device.
            (2) Medical product.--The term ``medical product'' means a 
        drug or device intended for humans. The terms ``drug'' and 
        ``device'' have the meanings given such terms in sections 
        201(g)(1) and 201(h) of the Federal Food, Drug and Cosmetic Act 
        (21 U.S.C. 321), respectively, including any component or raw 
        material used therein, but excluding health care services.

SEC. 109. AUTHORIZATION OF PAYMENT OF FUTURE DAMAGES TO CLAIMANTS IN 
              HEALTH CARE LAWSUITS.

    (a) In General.--In any health care lawsuit, if an award of future 
damages, without reduction to present value, equaling or exceeding 
$50,000 is made against a party with sufficient insurance or other 
assets to fund a periodic payment of such a judgment, the court shall, 
at the request of any party, enter a judgment ordering that the future 
damages be paid by periodic payments in accordance with the Uniform 
Periodic Payment of Judgments Act promulgated by the National 
Conference of Commissioners on Uniform State Laws.
    (b) Applicability.--This section applies to all actions which have 
not been first set for trial or retrial before the effective date of 
this title.

SEC. 110. EFFECT ON OTHER LAWS.

    (a) General Vaccine Injury.--
            (1) In general.--To the extent that title XXI of the Public 
        Health Service Act establishes a Federal rule of law applicable 
        to a civil action brought for a vaccine-related injury or 
        death--
                    (A) this title shall not affect the application of 
                the rule of law to such an action; and
                    (B) any rule of law prescribed by this title in 
                conflict with a rule of law under title XXI shall not 
                apply to such action.
            (2) Exception.--If there is an aspect of a civil action 
        brought for a vaccine-related injury or death to which a 
        Federal rule of law under title XXI of the Public Health 
        Service Act does not apply, then this title or otherwise 
        applicable law (as determined under this title) will apply to 
        such aspect of such action.
    (b) Smallpox Vaccine Injury.--
            (1) In general.--To the extent that part C of title II of 
        the Public Health Service Act establishes a Federal rule of law 
        applicable to a civil action brought for a smallpox vaccine-
        related injury or death--
                    (A) this title shall not affect the application of 
                the rule of law to such an action; and
                    (B) any rule of law prescribed by this title in 
                conflict with a rule of law of such part C shall not 
                apply to such action.
            (2) Exception.--If there is an aspect of a civil action 
        brought for a smallpox vaccine-related injury or death to which 
        a Federal rule of law under part C of title II of the Public 
        Health Service Act does not apply, then this title or otherwise 
        applicable law (as determined under this title) will apply to 
        such aspect of such action.
    (c) Other Federal Law.--Except as provided in this section, nothing 
in this title shall be deemed to affect any defense available, or any 
limitation on liability that applies to, a defendant in a health care 
lawsuit or action under any other provision of Federal law.

SEC. 111. STATE FLEXIBILITY AND PROTECTION OF STATES' RIGHTS.

    (a) Health Care Lawsuits.--The provisions governing health care 
lawsuits set forth in this title shall preempt, subject to subsections 
(b) and (c), State law to the extent that State law prevents the 
application of any provisions of law established by or under this 
title. The provisions governing health care lawsuits set forth in this 
title supersede chapter 171 of title 28, United States Code, to the 
extent that such chapter--
            (1) provides for a greater amount of damages or contingent 
        fees, a longer period in which a health care lawsuit may be 
        commenced, or a reduced applicability or scope of periodic 
        payment of future damages, than provided in this title; or
            (2) prohibits the introduction of evidence regarding 
        collateral source benefits.
    (b) Preemption of Certain State Laws.--No provision of this title 
shall be construed to preempt any State law (whether effective before, 
on, or after the date of the enactment of this Act) that specifies a 
particular monetary amount of compensatory or punitive damages (or the 
total amount of damages) that may be awarded in a health care lawsuit, 
regardless of whether such monetary amount is greater or lesser than is 
provided for under this title, notwithstanding section 105(a).
    (c) Protection of State's Rights and Other Laws.--
            (1) In general.--Any issue that is not governed by a 
        provision of law established by or under this title (including 
        the State standards of negligence) shall be governed by 
        otherwise applicable Federal or State law.
            (2) Rule of construction.--Nothing in this title shall be 
        construed to--
                    (A) preempt or supersede any Federal or State law 
                that imposes greater procedural or substantive 
                protections (such as a shorter statute of limitations) 
                for a health care provider or health care institution 
                from liability, loss, or damages than those provided by 
                this title;
                    (B) preempt or supercede any State law that permits 
                and provides for the enforcement of any arbitration 
                agreement related to a health care liability claim 
                whether enacted prior to or after the date of enactment 
                of this Act;
                    (C) create a cause of action that is not otherwise 
                available under Federal or State law; or
                    (D) affect the scope of preemption of any other 
                Federal law.

SEC. 112. APPLICABILITY; EFFECTIVE DATE.

    This title shall apply to any health care lawsuit brought in a 
Federal or State court, or subject to an alternative dispute resolution 
system, that is initiated on or after the date of the enactment of this 
Act, except that any health care lawsuit arising from an injury 
occurring prior to the date of enactment of this Act shall be governed 
by the applicable statute of limitations provisions in effect at the 
time the injury occurred.

             TITLE III--RESCISSION OF UNUSED STIMULUS FUNDS

SEC. 201. RESCISSION IN ARRA.

    Effective as of October 1, 2010, any unobligated balances available 
on such date of funds made available by division A of the American 
Recovery and Reinvestment Act of 2009 (Public Law 111-5) are rescinded.
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