Health Care OverUse Reform Today Act (HealthCOURT Act) of 2009 - Directs the Secretary of Health and Human Services (HHS) to propose to Congress a formalized process for the development of performance-based quality measures that could be applied to physicians' services under title XVIII (Medicare) of the Social Security Act. Requires the proposal: (1) to be in concert and agreement with the Physician Consortium for Performance Improvement; and (2) utilize only measures agreed upon by each physician specialty organization.
Directs the Secretary to: (1) provide for the selection and issuance of best practice guidelines for treatment of medical conditions; and (2) contract with a qualified physician consensus-building organization (such as the Physician Consortium for Performance Improvement), in concert and agreement with physician specialty organizations, to develop such guidelines.
Prohibits the award of any noneconomic damages in any health care lawsuit with respect to treatment that is within an issued guideline.
Prohibits the award of punitive damages against a health care practitioner in such a lawsuit based on a claim that medical treatment caused the claimant harm if the treatment: (1) was subject to quality review by a qualified physician consensus-building organization; (2) was approved in a guideline that underwent full review by such organization, public comment, the Secretary's approval, and dissemination; and (3) is generally recognized among qualified experts as safe, effective, and appropriate.
Amends the Public Health Service Act to authorize the Secretary to award grants to states for the development, implementation, and evaluation of administrative health care tribunals for the resolution of disputes concerning injuries allegedly caused by health care providers.
Expresses the sense of Congress that a health insurance issuer should be liable for damages for a harm caused when it makes a decision as to what care is medically necessary and appropriate.
[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3372 Introduced in House (IH)]
111th CONGRESS
1st Session
H. R. 3372
To establish Medicare performance-based quality measures, to establish
an affirmative defense in medical malpractice actions based on
compliance with best practices guidelines, and to provide grants to
States for administrative health care tribunals.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
July 29, 2009
Mr. Price of Georgia introduced the following bill; which was referred
to the Committee on Energy and Commerce, and in addition to the
Committee on Ways and Means, for a period to be subsequently determined
by the Speaker, in each case for consideration of such provisions as
fall within the jurisdiction of the committee concerned
_______________________________________________________________________
A BILL
To establish Medicare performance-based quality measures, to establish
an affirmative defense in medical malpractice actions based on
compliance with best practices guidelines, and to provide grants to
States for administrative health care tribunals.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Health Care OverUse Reform Today Act
(HealthCOURT Act) of 2009''.
SEC. 2. ESTABLISHMENT OF PERFORMANCE-BASED QUALITY MEASURES.
Not later than January 1, 2010, the Secretary of Health and Human
Services shall submit to Congress a proposal for a formalized process
for the development of performance-based quality measures that could be
applied to physicians' services under the Medicare program under title
XVIII of the Social Security Act. Such proposal shall be in concert and
agreement with the Physician Consortium for Performance Improvement and
shall only utilize measures agreed upon by each physician specialty
organization.
SEC. 3. AFFIRMATIVE DEFENSE BASED ON COMPLIANCE WITH BEST PRACTICE
GUIDELINES.
(a) Selection and Issuance of Best Practices Guidelines.--
(1) In general.--The Secretary of Health and Human Services
(in this section referred to as the ``Secretary'') shall
provide for the selection and issuance of best practice
guidelines (each in this subsection referred to as a
``guideline'') in accordance with paragraphs (2) and (3).
(2) Development process.--Not later than 90 days after the
date of the enactment of this Act, the Secretary shall enter
into a contract with a qualified physician consensus-building
organization (such as the Physician Consortium for Performance
Improvement), in concert and agreement with physician specialty
organizations, to develop guidelines for treatment of medical
conditions for application under subsection (b). Under the
contract, the organization shall take into consideration any
endorsed performance-based quality measures described in
section 2. Under the contract and not later than 18 months
after the date of the enactment of this Act, the organization
shall submit best practice guidelines for issuance as
guidelines under paragraph (3).
(3) Issuance.--
(A) In general.--Not later than 2 years after the
date of the enactment of this Act, the Secretary shall
issue, by regulation, after notice and opportunity for
public comment, guidelines that have been recommended
under paragraph (2) for application under subsection
(b).
(B) Limitation.--The Secretary may not issue
guidelines unless they have been approved or endorsed
by qualified physician consensus-building organization
involved and physician specialty organizations.
(C) Dissemination.--The Secretary shall broadly
disseminate the guidelines so issued.
(b) Limitation on Damages.--
(1) Limitation on noneconomic damages.--In any health care
lawsuit, no noneconomic damages may awarded with respect to
treatment that is within a guideline issued under subsection
(a).
(2) Limitation on punitive damages.--In any health care
lawsuit, no punitive damages may be awarded against a health
care practitioner based on a claim that such treatment caused
the claimant harm if--
(A) such treatment was subject to the quality
review by a qualified physician consensus-building
organization;
(B) such treatment was approved in a guideline that
underwent full review by such organization, public
comment, approval by the Secretary, and dissemination
as described in subparagraph (a); and
(C) such medical treatment is generally recognized
among qualified experts (including medical providers
and relevant physician specialty organizations) as
safe, effective, and appropriate.
(c) Use.--
(1) Introduction as evidence.--Guidelines under subsection
(a) may not be introduced as evidence of negligence or
deviation in the standard of care in any civil action unless
they have previously been introduced by the defendant.
(2) No presumption of negligence.--There would be no
presumption of negligence if a participating physician does not
adhere to such guidelines.
(d) Construction.--Nothing in this section shall be construed as
preventing a State from--
(1) replacing their current medical malpractice rules with
rules that rely, as a defense, upon a health care provider's
compliance with a guideline issued under subsection (a); or
(2) applying additional guidelines or safe-harbors that are
in addition to, but not in lieu of, the guidelines issued under
subsection (a).
SEC. 4. STATE GRANTS TO CREATE ADMINISTRATIVE HEALTH CARE TRIBUNALS.
Part P of title III of the Public Health Service Act (42 U.S.C.
280g et seq.) is amended by adding at the end the following:
``SEC. 399T. STATE GRANTS TO CREATE ADMINISTRATIVE HEALTH CARE
TRIBUNALS.
``(a) In General.--The Secretary may award grants to States for the
development, implementation, and evaluation of administrative health
care tribunals that comply with this section, for the resolution of
disputes concerning injuries allegedly caused by health care providers.
``(b) Conditions for Demonstration Grants.--To be eligible to
receive a grant under this section, a State shall submit to the
Secretary an application at such time, in such manner, and containing
such information as may be required by the Secretary. A grant shall be
awarded under this section on such terms and conditions as the
Secretary determines appropriate.
``(c) Representation by Counsel.--A State that receives a grant
under this section may not preclude any party to a dispute before an
administrative health care tribunal operated under such grant from
obtaining legal representation during any review by the expert panel
under subsection (d), the administrative health care tribunal under
subsection (e), or a State court under subsection (f).
``(d) Expert Panel Review and Early Offer Guidelines.--
``(1) In general.--Prior to the submission of any dispute
concerning injuries allegedly caused by health care providers
to an administrative health care tribunal under this section,
such allegations shall first be reviewed by an expert panel.
``(2) Composition.--
``(A) In general.--The members of each expert panel
under this subsection shall be appointed by the head of
the State agency responsible for health. Each expert
panel shall be composed of no fewer than 3 members and
not more than 7 members. At least one-half of such
members shall be medical experts (either physicians or
health care professionals).
``(B) Licensure and expertise.--Each physician or
health care professional appointed to an expert panel
under subparagraph (A) shall--
``(i) be appropriately credentialed or
licensed in 1 or more States to deliver health
care services; and
``(ii) typically treat the condition, make
the diagnosis, or provide the type of treatment
that is under review.
``(C) Independence.--
``(i) In general.--Subject to clause (ii),
each individual appointed to an expert panel
under this paragraph shall--
``(I) not have a material familial,
financial, or professional relationship
with a party involved in the dispute
reviewed by the panel; and
``(II) not otherwise have a
conflict of interest with such a party.
``(ii) Exception.--Nothing in clause (i)
shall be construed to prohibit an individual
who has staff privileges at an institution
where the treatment involved in the dispute was
provided from serving as a member of an expert
panel merely on the basis of such affiliation,
if the affiliation is disclosed to the parties
and neither party objects.
``(D) Practicing health care professional in same
field.--
``(i) In general.--In a dispute before an
expert panel that involves treatment, or the
provision of items or services--
``(I) by a physician, the medical
experts on the expert panel shall be
practicing physicians (allopathic or
osteopathic) of the same or similar
specialty as a physician who typically
treats the condition, makes the
diagnosis, or provides the type of
treatment under review; or
``(II) by a health care
professional other than a physician, at
least two medical experts on the expert
panel shall be practicing physicians
(allopathic or osteopathic) of the same
or similar specialty as the health care
professional who typically treats the
condition, makes the diagnosis, or
provides the type of treatment under
review, and, if determined appropriate
by the State agency, an additional
medical expert shall be a practicing
health care professional (other than
such a physician) of such a same or
similar specialty.
``(ii) Practicing defined.--In this
paragraph, the term `practicing' means, with
respect to an individual who is a physician or
other health care professional, that the
individual provides health care services to
individual patients on average at least 2 days
a week.
``(E) Pediatric expertise.--In the case of dispute
relating to a child, at least 1 medical expert on the
expert panel shall have expertise described in
subparagraph (D)(i) in pediatrics.
``(3) Determination.--After a review under paragraph (1),
an expert panel shall make a determination as to the liability
of the parties involved and compensation.
``(4) Acceptance.--If the parties to a dispute before an
expert panel under this subsection accept the determination of
the expert panel concerning liability and compensation, such
compensation shall be paid to the claimant and the claimant
shall agree to forgo any further action against the health care
providers involved.
``(5) Failure to accept.--If any party decides not to
accept the expert panel's determination, the matter shall be
referred to an administrative health care tribunal created
pursuant to this section.
``(e) Administrative Health Care Tribunals.--
``(1) In general.--Upon the failure of any party to accept
the determination of an expert panel under subsection (d), the
parties shall have the right to request a hearing concerning
the liability or compensation involved by an administrative
health care tribunal established by the State involved.
``(2) Requirements.--In establishing an administrative
health care tribunal under this section, a State shall--
``(A) ensure that such tribunals are presided over
by special judges with health care expertise;
``(B) provide authority to such judges to make
binding rulings, rendered in written decisions, on
standards of care, causation, compensation, and related
issues with reliance on independent expert witnesses
commissioned by the tribunal;
``(C) establish gross negligence as the legal
standard for the tribunal;
``(D) allow the admission into evidence of the
recommendation made by the expert panel under
subsection (d); and
``(E) provide for an appeals process to allow for
review of decisions by State courts.
``(f) Review by State Court After Exhaustion of Administrative
Remedies.--
``(1) Right to file.--If any party to a dispute before a
health care tribunal under subsection (e) is not satisfied with
the determinations of the tribunal, the party shall have the
right to file their claim in a State court of competent
jurisdiction.
``(2) Forfeit of awards.--Any party filing an action in a
State court in accordance with paragraph (1) shall forfeit any
compensation award made under subsection (e).
``(3) Admissibility.--The determinations of the expert
panel and the administrative health care tribunal pursuant to
subsections (d) and (e) with respect to a State court
proceeding under paragraph (1) shall be admissible into
evidence in any such State court proceeding.
``(g) Definition.--In this section, the term `health care provider'
has the meaning given such term for purposes of part A of title VII.
``(h) Authorization of Appropriations.--There are authorized to be
appropriated for any fiscal year such sums as may be necessary for
purposes of making grants to States under this section.''.
SEC. 5. SENSE OF CONGRESS REGARDING HEALTH INSURER LIABILITY.
It is the sense of Congress that a health insurance issuer should
be liable for damages for harm caused when it makes a decision as to
what care is medically necessary and appropriate.
<all>
Introduced in House
Introduced in House
Referred to House Energy and Commerce
Referred to the Committee on Energy and Commerce, and in addition to the Committee on Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to House Ways and Means
Referred to the Subcommittee on Health.
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