Health Care OverUse Reform Today Act (HealthCOURT Act) of 2011 - Requires the Secretary of Health and Human Services (HHS) to provide for the selection and issuance of best practice guidelines for treatment of medical conditions.
Requires the Secretary to contract with a qualified physician consensus-building organization to develop guidelines and issue a rule that provides for the establishment of such guidelines. Prohibits the Secretary from making a rule that includes guidelines other than those submitted by such organization.
Requires the Secretary to routinely review guidelines and, as necessary, enter into additional contracts to issue guidelines.
Prohibits a court from awarding noneconomic damages or punitive damages in any health care lawsuit with respect to treatment that is consistent with a guideline issued under this Act.
Prohibits guidelines from being introduced as evidence of negligence or deviation in the standard of care in any health care lawsuit unless such guidelines have previously been introduced by the defendant.
Declares that there shall be no presumption of negligence if a health care provider provides treatment in a manner inconsistent with such guidelines.
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. Sets forth provisions governing the operation of such tribunals, including requiring a review of allegations by an expert panel to assess liability.
[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2363 Introduced in House (IH)]
112th CONGRESS
1st Session
H. R. 2363
To establish performance-based quality measures, to establish
limitations on recovery in health care lawsuits based on compliance
with best practice guidelines, and to provide grants to States for
administrative health care tribunals.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 24, 2011
Mr. Price of Georgia introduced the following bill; which was referred
to the Committee on Energy and Commerce
_______________________________________________________________________
A BILL
To establish performance-based quality measures, to establish
limitations on recovery in health care lawsuits based on compliance
with best practice 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 2011''.
SEC. 2. LIMITATION ON RECOVERY IN A HEALTH CARE LAWSUIT 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 for treatment of medical conditions (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 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. The contract shall
require that the organization submit guidelines to the agency
not later than 18 months after the date of enactment of this
Act.
(3) Issuance.--
(A) In general.--Not later than 2 years after the
date of the enactment of this Act, the Secretary shall,
after notice and opportunity for public comment, make a
rule that provides for the establishment of the
guidelines submitted under paragraph (2).
(B) Limitation.--The Secretary may not make a rule
that includes guidelines other than those submitted
under paragraph (2).
(C) Dissemination.--The Secretary shall post such
guidelines on the public Internet web page of the
Department of Health and Human Services.
(4) Maintenance.--Not later than 4 years after the date of
enactment of this Act, and every 2 years thereafter, the
Secretary shall review the guidelines and shall, as necessary,
enter into contracts similar to the contract described in
paragraph (2), and issue guidelines in a manner similar to the
issuance of guidelines under paragraph (3).
(b) Limitation on Damages.--
(1) Limitation on noneconomic damages.--In any health care
lawsuit, a court may not award noneconomic damages with respect
to treatment that is consistent with 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 provider based on a claim that such treatment caused the
claimant harm if--
(A) such treatment was subject to quality review by
a qualified physician consensus-building organization
and has been found to be safe, effective, and
appropriate;
(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); or
(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 established in a
rule made under subsection (a) may not be introduced as
evidence of negligence or deviation in the standard of care in
any health care lawsuit unless they have previously been
introduced by the defendant.
(2) No presumption of negligence.--There shall be no
presumption of negligence if a health care provider provides
treatment in a manner inconsistent with 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. 3. 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'
means any person or entity required by State or Federal laws or
regulations 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.
``(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. 4. DEFINITIONS.
In this Act:
(1) Health care lawsuit.--The term ``health care lawsuit''
means any health care liability claim concerning the provision
of health care goods or services brought in a Federal court or
in a State court or pursuant to an alternative dispute
resolution system, if such claim concerns items or services
with respect to which payment is made under title XVIII, title
XIX, or title XXI of the Social Security Act or for which the
claimant receives a Federal tax benefit, against a health care
provider, a health care organization, or the manufacturer,
distributor, supplier, marketer, promoter, or seller of a
medical product, 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. Such term does not include a claim or action
which is based on criminal liability; which seeks civil fines
or penalties paid to Federal government; or which is grounded
in antitrust.
(2) Noneconomic damages.--The term ``noneconomic damages''
means damages for losses 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, hedonic damages, injury to
reputation, and any other nonpecuniary losses.
(3) 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. Punitive damages are neither economic nor noneconomic
damages.
(4) Medical treatment.--The term ``medical treatment''
means the provision of any goods or services by a health care
provider or by any individual working under the supervision of
a health care provider, that relates to the diagnosis,
prevention, or treatment of any human disease or impairment, or
the assessment or care of the health of human beings.
(5) Health care provider.--The term ``health care
provider'' means any person or entity required by State or
Federal laws or regulations 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.
(6) Federal tax benefit.--A claimant shall be treated as
receiving a Federal tax benefit with respect to payment for
items or services if--
(A) such payment is compensation by insurance--
(i) which constitutes medical care, and
(ii) with respect to the payment of
premiums for which the claimant, or the
employer of the claimant, was allowed an
exclusion from gross income, a deduction, or a
credit for Federal income tax purposes,
(B) a deduction was allowed with respect to such
payment for Federal income tax purposes, or
(C) such payment was from an Archer MSA (as defined
in section 220(d) of the Internal Revenue Code of
1986), a health savings account (as defined in section
223(d) of such Code), a flexible spending arrangement
(as defined in section 106(c)(2) of such Code), or a
health reimbursement arrangement which is treated as
employer-provided coverage under an accident or health
plan for purposes of section 106 of such Code.
<all>
Introduced in House
Introduced in House
Referred to the House Committee on Energy and Commerce.
Referred to the Subcommittee on Health.
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