HR 6183 CPH
102d CONGRESS
2d Session
H. R. 6183
To amend the Public Health Service Act to provide protections from legal
liability for certain health care professionals providing services pursuant
to such Act.
IN THE HOUSE OF REPRESENTATIVES
October 6 (legislative day, OCTOBER 5), 1992
Mr. WYDEN introduced the following bill; which was referred to the Committee
on Energy and Commerce
October 6 (legislative day, OCTOBER 5), 1992
Committee on Energy and Commerce discharged; considered and passed
A BILL
To amend the Public Health Service Act to provide protections from legal
liability for certain health care professionals providing services pursuant
to such Act.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,

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This Act may be cited as the `Federally Supported Health Centers Assistance
Act of 1992'.

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(a) IN GENERAL- Section 224 of the Public Health Service Act (42 U.S.C. 233)
is amended by adding at the end the following new subsection:
`(g)(1) For purposes of this section, an entity described in paragraph
(4) and any officer, employee, or contractor (subject to paragraph (5))
of such an entity who is a physician or other licensed or certified health
care practitioner shall be deemed to be an employee of the Public Health
Service for a calendar year that begins during a fiscal year for which a
transfer of the full amount estimated under subsection (k)(1)(A) was made
under subsection (k)(3) (subject to paragraph (3)). The remedy against the
United States for an entity described in paragraph (4) and any officer,
employee, or contractor (subject to paragraph (5)) of such an entity who
is deemed to be an employee of the Public Health Service pursuant to this
paragraph shall be exclusive of any other civil action or proceeding to the
same extent as the remedy against the United States is exclusive pursuant
to subsection (a).
`(2) If, with respect to an entity or person deemed to be an employee for
purposes of paragraph (1), a cause of action is instituted against the
United States pursuant to this section, any claim of the entity or person
for benefits under an insurance policy with respect to medical malpractice
relating to such cause of action shall be subrogated to the United States.
`(3) This subsection shall apply with respect to a cause of action arising
from an act or omission which occurs on or after January 1, 1993. This
subsection shall not apply with respect to a cause of action arising from
an act or omission which occurs on or after January 1, 1996.
`(4) An entity described in this paragraph is a public or non-profit private
entity receiving Federal funds under any of the following grant programs:
`(A) Section 329 (relating to grants for migrant health centers).
`(B) Section 330 (relating to grants for community health centers).
`(C) Section 340 (relating to grants for health services for the homeless).
`(D) Section 340A (relating to grants for health services for residents
of public housing).
`(5) For purposes of paragraph (1), an individual may be considered a
contractor of an entity described in paragraph (4) only if--
`(A) the individual normally performs on average at least 32 1/2  hours
of service per week for the entity for the period of the contract; or
`(B) in the case of an individual who normally performs on average less
than 32 1/2  hours of services per week for the entity for the period of the
contract and is a licensed or certified provider of obstetrical services--
`(i) the individual's medical malpractice liability insurance coverage
does not extend to services performed by the individual for the entity
under the contract, or
`(ii) the Secretary finds that patients to whom the entity furnishes
services will be deprived of obstetrical services if such individual is
not considered a contractor of the entity for purposes of paragraph (1).'.
(b) REQUIREMENT OF APPROPRIATE POLICIES AND PROCEDURES REGARDING HEALTH
CARE PROFESSIONALS- Section 224 of the Public Health Service Act, as
amended by subsection (a), is further amended by adding at the end the
following new subsection:
`(h) Notwithstanding subsection (g)(1), the Secretary, in consultation
with the Attorney General, may not deem an entity described in subsection
(g)(4) to be an employee of the Public Health Service Act for purposes of
this section unless the entity--
`(1) has implemented appropriate policies and procedures to reduce the
risk of malpractice and the risk of lawsuits arising out of any health or
health-related functions performed by the entity;
`(2) has reviewed and verified the professional credentials, references,
claims history, fitness, professional review organization findings, and
license status of its physicians and other licensed or certified health
care practitioners, and, where necessary, has obtained the permission from
these individuals to gain access to this information;
`(3) has no history of claims having been filed against the United States as
a result of the application of this section to the entity or its officers,
employees, or contractors as provided for under this section, or, if such a
history exists, has fully cooperated with the Attorney General in defending
against any such claims and either has taken, or will take, any necessary
corrective steps to assure against such claims in the future; and
`(4) has fully cooperated with the Attorney General in providing information
relating to an estimate described under subsection (k).'.
(c) AUTHORIZATION FOR THE ATTORNEY GENERAL TO EXCLUDE CERTAIN HEALTH CARE
PROFESSIONALS FROM COVERAGE- Section 224 of the Public Health Service Act,
as amended by subsections (a) and (b), is further amended by adding at
the end the following new subsection:
`(i)(1) Notwithstanding subsection (g)(1), the Attorney General, in
consultation with the Secretary, may determine, after notice and opportunity
for a hearing, that an individual physician or other licensed or certified
health care practitioner who is an officer, employee, or contractor of
an entity described in subsection (g)(4) shall not be deemed to be an
employee of the Public Health Service for purposes of this section, if
treating such individual as such an employee would expose the Government
to an unreasonably high degree of risk of loss because such individual--
`(A) does not comply with the policies and procedures that the entity has
implemented pursuant to subsection (h)(1);
`(B) has a history of claims filed against him or her as provided for
under this section that is outside the norm for licensed or certified
health care practitioners within the same specialty;
`(C) refused to reasonably cooperate with the Attorney General in defending
against any such claim;
`(D) provided false information relevant to the individual's performance of
his or her duties to the Secretary, the Attorney General, or an applicant
for or recipient of funds under this Act; or
`(E) was the subject of disciplinary action taken by a State medical
licensing authority or a State or national professional society.
`(2) A final determination by the Attorney General under this subsection
that an individual physician or other licensed or certified health care
professional shall not be deemed to be an employee of the Public Health
Service shall be effective upon receipt by the entity employing such
individual of notice of such determination, and shall apply only to acts
or omissions occurring after the date such notice is received.'.

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Section 224 of the Public Health Service Act, as amended by section 2,
is further amended by adding at the end the following new subsection:
`(j) In the case of a health care provider who is an officer, employee,
or contractor of an entity described in subsection (g)(4), section 335(e)
shall apply with respect to the provider to the same extent and in the
same manner as such section applies to any member of the National Health
Service Corps.'.

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Section 224 of the Public Health Service Act, as amended by sections 2
and 3, is further amended by adding at the end the following new subsection:
`(k)(1)(A) For each of the fiscal years 1993, 1994, and 1995, the Attorney
General, in consultation with the Secretary, shall estimate by the beginning
of the year (except that an estimate shall be made for fiscal year 1993
by December 31, 1992, subject to an adjustment within 90 days thereafter)
the amount of all claims which are expected to arise under this section
(together with related fees and expenses of witnesses) for which payment
is expected to be made in accordance with section 1346 and chapter 171
of title 28, United States Code, from the acts or omissions, during the
calendar year that begins during that fiscal year, of entities described
in subsection (g)(4) and of officers, employees, or contractors (subject
to subsection (g)(5)) of such entities.
`(B) The estimate under subparagraph (A) shall take into account--
`(i) the value and frequency of all claims for damage for personal injury,
including death, resulting from the performance of medical, surgical,
dental, or related functions by entities described in subsection (g)(4)
or by officers, employees, or contractors (subject to subsection (g)(5))
of such entities who are deemed to be employees of the Public Health Service
under subsection (g)(1) that, during the preceding 5-year period, are filed
under this section or, with respect to years occurring before this subsection
takes effect, are filed against persons other than the United States,
`(ii) the amounts paid during that 5-year period on all claims described in
clause (i), regardless of when such claims were filed, adjusted to reflect
payments which would not be permitted under section 1346 and chapter 171
of title 28, United States Code, and
`(iii) amounts in the fund established under paragraph (2) but unspent
from prior fiscal years.
`(2) Subject to appropriations, for each of the fiscal years 1993, 1994,
and 1995, the Secretary shall establish a fund of an amount equal to the
amount estimated under paragraph (1) that is attributable to entities
receiving funds under each of the grant programs described in paragraph
(4) of subsection (g), but not to exceed a total of $30,000,000 for each
such fiscal year.
`(3) In order for payments to be made for judgments against the United
States (together with related fees and expenses of witnesses) pursuant to
this section arising from the acts or omissions of entities described in
subsection (g)(4) and of officers, employees, or contractors (subject to
subsection (g)(5)) of such entities, the total amount contained within the
fund established by the Secretary under paragraph (2) for a fiscal year
shall be transferred not later than the December 31 that occurs during
the fiscal year to the appropriate accounts in the Treasury.'.

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(a) IN GENERAL- Not later than April 1, 1995, the Attorney General, in
consultation with the Secretary of Health and Human Services (hereafter
referred to as the `Secretary'), shall submit a report to Congress on the
medical malpractice liability claims experience of entities subject to
section 224(g) of the Public Health Service Act (as added by section 2(a))
and the risk exposure associated with such entities.
(b) EFFECT OF LIABILITY PROTECTIONS ON COSTS INCURRED BY COVERED ENTITIES-
The Attorney General's report under subsection (a) shall include an analysis
by the Secretary comparing--
(1) the Secretary's estimate of the aggregate amounts that such entities
(together with the officers, employees, and contractors of such entities who
are subject to section 224(g) of such Act) would have directly or indirectly
paid to obtain medical malpractice liability insurance coverage had section
224(g) of the Public Health Service Act not been enacted into law, with
(2) the aggregate amounts by which the grants received by such entities
under the Public Health Service Act were reduced as a result of the
enactment of section 224(k)(2) of such Act.

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The amendments made by this Act shall take effect on the date of the
enactment of this Act.

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Federally Supported Health Centers Assistance Act of 1992 — HR. 6183

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