S.Amdt. 2829

SA 2829. Mr. GRAHAM (for himself and Mr. Chambliss) submitted an
amendment intended to be proposed to amendment SA 2786 proposed by Mr.
Reid (for himself, Mr. Baucus, Mr. Dodd, and Mr. Harkin) to the bill
H.R. 3590, to amend the Internal Revenue Code of 1986 to modify the
first-time homebuyers credit in the case of members of the Armed Forces
and certain other Federal employees, and for other purposes; which was
ordered to lie on the table; as follows:

At the appropriate place, insert the following:

TITLE __--MEDICAL LIABILITY REFORM

SEC. _01. SHORT TITLE.

This title may be cited as the ``Fair Resolution of Medical
Liability Disputes Act of 2009''.

SEC. _02. FINDINGS.

Congress finds that--
(1) the health care and insurance industries are industries
affecting interstate commerce, and the health care
malpractice litigation systems throughout the United States
affect interstate commerce by contributing to the high cost
of health care and premiums for malpractice insurance
purchased by health care providers; and
(2) the Federal Government, as a direct provider of health
care and as a source of payment for health care, has a major
interest in health care and a demonstrated interest in
assessing the quality of care, access to care, and the costs
of care through the evaluative activities of several Federal
agencies.

SEC. _03. DEFINITIONS.

In this title:
(1) Alternative dispute resolution system; adr.--The term
``alternative dispute resolution system'' or ``ADR'' means a
system established under this title that provides for the
resolution of covered health care malpractice claims in a
manner other than through a civil action in Federal or State
court.
(2) Covered health care malpractice action.--The term
``covered health care malpractice action'' means a civil
action in which a covered health care malpractice claim is
made against a health care provider or health care
professional.
(3) Covered health care malpractice claim.--The term
``covered health care malpractice claim'' means a malpractice
claim (excluding product liability claims) relating to the
provision of, or the failure to provide, health care services
involving a defendant covered health care professional or
provider.
(4) Covered health care professional.--The term ``covered
health care professional'' means an individual, including a
physician, nurse, chiropractor, nurse midwife, physical
therapist, social worker, or physician assistant--
(A) who provides health care services in a State;
(B) for whom individuals entitled to, or enrolled for,
benefits under part A of title XVIII of the Social Security
Act (42 U.S.C. 1395c et seq.), or enrolled for benefits under
part B of such Act (42 U.S.C. 1395j et seq.) comprise not
less than 25 percent of the total patients of such
professional, as determined by the Secretary; and
(C) who is required by State law or regulation to be
licensed or certified by a State a condition for providing
such services in the State.
(5) Covered health care provider.--The term ``covered
health care provider'' means an organization or institution--
(A) that is engaged in the delivery of health care services
in a State;
(B) for which individuals entitled to, or enrolled for,
benefits under part A of title XVIII of the Social Security
Act (42 U.S.C. 1395c et seq.), or enrolled for benefits under
part B of such Act (42 U.S.C. 1395j et seq.) comprise not
less than 25 percent of the total patients of such
organization or institution, as determined by the Secretary;
and
(C) that is required by State law or regulation to be
licensed or certified by the State as a condition for
engaging in the delivery of such services in the State.
(6) Secretary.--The term ``Secretary'' means the Secretary
of Health and Human Services.
(7) State.--The term ``State'' means each of the several
States, the District of Columbia, Puerto Rico, the Virgin
Islands, Guam, American Samoa, and the Northern Mariana
Islands.

SEC. _04. REQUIREMENT FOR INITIAL RESOLUTION OF ACTION
THROUGH ALTERNATIVE DISPUTE RESOLUTION.

(a) In General.--
(1) State cases.--A covered health care malpractice action
may not be brought in any State court during a calendar year
unless the covered health care malpractice claim that is the
subject of the action has been initially resolved under an
alternative dispute resolution system certified for the year
by the Attorney General under section _06(a), or, in the case
of a State in which such a system is not in effect for the
year, under the alternative Federal system established under
section _06(b).
(2) Federal diversity actions.--A covered health care
malpractice action may not be brought in a Federal court
under section 1332 of title 28, United States Code, during a
calendar year unless the covered health care malpractice
claim that is the subject of the action has been initially
resolved under the alternative dispute resolution system
described in paragraph (1) that applied in the State whose
law applies in such action.
(b) Initial Resolution of Claims Under ADR.--For purposes
of subsection (a), an action is ``initially resolved'' under
an alternative dispute resolution system if--
(1) the ADR reaches a decision on whether the defendant is
liable to the plaintiff for damages; and
(2) if the ADR determines that the defendant is liable, the
ADR reaches a decision regarding the amount of damages
assessed against the defendant.
(c) Procedures for Filing Actions.--
(1) Notice of intent to contest decision.--
(A) In general.--Not later than 60 days after a decision is
issued with respect to a covered health care malpractice
claim under an alternative dispute resolution system, each
party affected by the decision shall submit a sealed
statement to a court of competent jurisdiction, selected by
the arbitrator, indicating whether the party intends to
contest the decision.
(B) Sealed statements.--Each sealed statement submitted to
a court under subparagraph (A) shall remain sealed until the
earlier of--
(i) the date on which all affected parties have submitted
such statement; or
(ii) the submission deadline described in subparagraph (A).
(2) Requirements for filing action.--A covered health care
malpractice action may not be brought by a party unless--
(A) such party files the action in a court of competent
jurisdiction not later than 90 days after the decision
resolving the covered health care malpractice claim that is
the subject of the action is issued under the applicable
alternative dispute resolution system; and
(B) any party has filed the notice of intent required by
paragraph (1).
(3) Court of competent jurisdiction.--For purposes of this
subsection, the term ``court of competent jurisdiction''
means--
(A) with respect to actions filed in a State court, the
appropriate State trial court; and
(B) with respect to actions filed in a Federal court, the
appropriate United States district court.
(d) Legal Effect of Uncontested ADR Decision.--A decision
reached under an alternative dispute resolution system that
is not contested under subsection (c) shall, for purposes of
enforcement by a court of competent jurisdiction, have the
same status in the court as the verdict of a covered health
care malpractice action adjudicated in a State or Federal
trial court.
(e) Standard of Judicial Review.--The standard of judicial
review of a claim filed under subsection (c) shall be de
novo.
(f) Award of Costs and Attorneys' Fees After Initial ADR
Resolution.--
(1) In general.--In the case of a covered health care
malpractice action brought in any State or Federal court
after ADR, if the final judgment or order issued (exclusive
of costs, expenses, and attorneys' fees incurred after
judgment or trial) in the action is not more favorable to a
party contesting the ADR decision than the ADR decision, the
opposing party may file with the court, not later than 10
days after the final judgment or order is issued, a petition
for payment of costs and expenses, including attorneys' fees,
incurred with respect to the claim or claims after the date
of the ADR decision.
(2) Award of costs and expenses.--If the court finds, under
a petition filed under paragraph (1), with respect to a claim
or claims, that the judgment or order finally obtained is not
more favorable to the party

[[Page S12170]]

contesting the ADR decision with respect to the claim or
claims than the ADR decision, the court shall order the
contesting party to pay the costs and expenses of the
opposing party, including attorneys' fees, incurred with
respect to the claim or claims after the date of the ADR
decision, unless the court finds that requiring the payment
of such costs and expenses would be manifestly unjust.
(3) Limitation.--Attorneys' fees awarded under this
subsection shall be in an amount reasonably attributable to
the claim or claims involved, calculated on the basis of an
hourly rate of the attorney, which may not exceed that which
the court considers acceptable in the community in which the
attorney practices law, taking into account the attorney's
qualifications and experience and the complexity of the case.
Attorneys' fees under this subsection may not exceed--
(A) the actual cost incurred by the party for attorneys'
fees payable to an attorney for services in connection with
the claim or claims; or
(B) if no such cost was incurred by the party due to a
contingency fee agreement, a reasonable cost that would have
been incurred by the party for noncontingent attorneys' fees
payable to an attorney for services in connection with the
claim or claims.
(g) Applicability.--The requirements of this section shall
apply only to each covered health care malpractice claim
arising out of an event (or events) occurring on or after the
date that is 270 days after the date of enactment of this
Act.

SEC. _05. BASIC REQUIREMENTS FOR STATE ALTERNATIVE DISPUTE
RESOLUTION SYSTEMS.

The alternative dispute resolution system of a State meets
the requirements of this section if the system--
(1) applies to all covered health care malpractice claims
under the jurisdiction of the courts of such State;
(2) requires that a written opinion resolving the dispute
be issued not later than 180 days after the date on which
each party against whom the claim is filed has received
notice of the claim (other than in exceptional cases for
which a longer period is required for the issuance of such an
opinion), and that the opinion contain--
(A) findings of fact relating to the dispute; and
(B) a description of the costs incurred in resolving the
dispute under the system (including any fees paid to the
individuals hearing and resolving the claim), together with
an appropriate assessment of the costs against any of the
parties;
(3) requires individuals who hear and resolve claims under
the system to meet such qualifications as the State may
require (in accordance with regulations of the Attorney
General);
(4) is approved by the State or by local governments in the
State;
(5) with respect to a State system that consists of
multiple dispute resolution procedures--
(A) permits the parties to a dispute to select the
procedure to be used for the resolution of the dispute under
the system; and
(B) if the parties do not agree on the procedure to be used
for the resolution of the dispute, assigns a particular
procedure to the parties;
(6) provides for the transmittal to the State agency
responsible for monitoring or disciplining health care
professionals and health care providers of any findings made
under the system that such a professional or provider
committed malpractice, unless, during the 90-day period
beginning on the date the system resolves the claim against
the professional or provider, the professional or provider
brings an action contesting the decision made under the
system; and
(7) provides for the regular transmittal to the
Administrator of the Agency for Healthcare Research and
Quality of information on disputes resolved under the system,
in a manner that assures that the identity of the parties to
a dispute shall not be revealed.

SEC. _06. CERTIFICATION OF STATE SYSTEMS; APPLICABILITY OF
ALTERNATIVE FEDERAL SYSTEM.

(a) Certification.--
(1) In general.--Not later than 270 days after the date of
enactment of this Act and periodically thereafter, the
Attorney General, in consultation with the Secretary, shall
determine whether the alternative dispute resolution systems
of each State meet the requirements of this title.
(2) Basis for certification.--The Attorney General shall
certify the alternative dispute resolution system of a State
under this subsection for a calendar year if the Attorney
General determines under paragraph (1) that such system meets
the requirements of section _05.
(b) Applicability of Alternative Federal System.--
(1) Establishment and applicability.--Not later than 270
days after the date of enactment of this Act, the Attorney
General, in consultation with the Secretary, shall establish
by rulemaking an alternative Federal ADR system for the
resolution of covered health care malpractice claims during a
calendar year, to be used for a calendar year in States that
do not have an alternative dispute resolution system that is
certified under subsection (a) for such year.
(2) Requirements for system.--Under the alternative Federal
ADR system established under paragraph (1)--
(A) paragraphs (1), (2), (6), and (7) of section _05 shall
apply to claims brought under such system;
(B) the claims brought under such system shall be heard and
resolved by medical and legal experts appointed as
arbitrators by the Attorney General, in consultation with the
Secretary; and
(C) with respect to a State in which such system is in
effect, the Attorney General may (at the request of such
State) modify the system to take into account the existence
of dispute resolution procedures in the State that affect the
resolution of health care malpractice claims.
(3) Treatment of states with alternative system in
effect.--If the alternative Federal ADR system established
under this subsection is applied with respect to a State for
a calendar year such State shall reimburse the United States,
at such time and in such manner as the Secretary may require,
for the costs incurred by the United States during such year
as a result of the application of the system with respect to
the State.

SEC. _07. GAO STUDY OF PRIVATE LITIGATION INSURANCE.

The Comptroller General of the United States shall--
(1) undertake a study of the effectiveness of private
litigation insurance markets, such as those in the United
Kingdom and Germany, in providing affordable access to
courts, evaluating the merit of prospective claims, and
ensuring that prevailing parties in ``loser pays'' systems
are reimbursed for attorneys' fees; and
(2) not later than 270 days after the date of enactment of
this Act, submit to Congress a report describing the results
of such study.
SA 2830. Mr. BROWNBACK (for himself and Mr. Lautenberg) submitted an
amendment intended to be proposed to amendment SA 2786 proposed by Mr.
Reid (for himself, Mr. Baucus, Mr. Dodd, and Mr. Harkin) to the bill
H.R. 3590, to amend the Internal Revenue Code of 1986 to modify the
first-time homebuyers credit in the case of members of the Armed Forces
and certain other Federal employees, and for other purposes; which was
ordered to lie on the table; as follows:

On page 143 of the amendment, after line 7, add the
following:

SEC. 10011. CERTIFICATION.

(a) In General.--This title (other than this section), and
the amendments made by this title, shall become effective
only if the Secretary of Health and Human Services certifies
to Congress that the implementation of this title, and the
amendments made by this title, will--
(1) pose no additional risk to the public's health and
safety; and
(2) result in a significant reduction in the cost of
covered products to the American consumer.
(b) Effective Date.--Notwithstanding any other provision of
this title, or of any amendment made by this title--
(1) any reference in this title, or in such amendments, to
the date of enactment of this title shall be deemed to be a
reference to the date of the certification under subsection
(a); and
(2) each reference to ``January 1, 2012'' in section
10006(c) shall be substituted with ``90 days after the
effective date of this title''.

SA 2831. Mr. JOHANNS submitted an amendment intended to be proposed
to amendment SA 2786 proposed by Mr. Reid (for himself, Mr. Baucus, Mr.
Dodd, and Mr. Harkin) to the bill H.R. 3590, to amend the Internal
Revenue Code of 1986 to modify the first-time homebuyers credit in the
case of members of the Armed Forces and certain other Federal
employees, and for other purposes; which was ordered to lie on the
table; as follows:

On page 436, between lines 14 and 15, insert the following:

SEC. 2008. NONAPPLICATION OF ANY MEDICAID ELIGIBILITY
EXPANSION UNTIL REDUCTION IN MEDICAID FRAUD
RATE.

Notwithstanding any other provision of this Act, with
respect to a State, any provision of this Act or an amendment
made by this Act that imposes a federally-mandated expansion
of eligibility for Medicaid shall not apply to the State
before the date on which the State Medicaid Director
certifies to the Secretary of Health and Human Services that
the Medicaid payment error rate measurement (commonly
referred to as ``PERM'') for the State does not exceed 5
percent.

SA 2832. Mr. JOHANNS submitted an amendment intended to be proposed
to amendment SA 2786 proposed by Mr. Reid (for himself, Mr. Baucus, Mr.
Dodd, and Mr. Harkin) to the bill H.R. 3590, to amend the Internal
Revenue Code of 1986 to modify the first-time homebuyers credit in the
case of members of the Armed Forces and certain other Federal
employees, and for other purposes; which was ordered to lie on the
table; as follows:

On page 2074, after line 25, add the following:

[[Page S12171]]

SEC. ___. DISTRIBUTION OF REMAINING BALANCES IN FLEXIBLE
SPENDING ARRANGEMENTS UPON TERMINATION FROM
EMPLOYMENT.

(a) In General.--Section 125 of the Internal Revenue Code
of 1986 is amended by redesignating subsections (i) and (j)
as subsections (j) and (k), respectively, and by inserting
after subsection (h) the following new subsection:
``(i) Distribution of Remaining Balances in Flexible
Spending Arrangements Upon Termination From Employment.--
``(1) In general.--For purposes of this title, a plan or
other arrangement shall not fail to be treated as a health
flexible spending arrangement or a dependent care flexible
spending arrangement solely because under the plan or
arrangement a participant is permitted access to any unused
balance in the participant's accounts under such plan or
arrangement in the manner provided under paragraph (2).
``(2) Distribution upon termination.--
``(A) In general.--A plan or arrangement shall permit a
participant (or any designated heir of the participant) to
receive a cash payment equal to the aggregate unused account
balances in the plan or arrangement as of the date the
individual is separated (including by death or disability)
from employment with the employer maintaining the plan or
arrangement.
``(B) Inclusion in income.--Any payment under subparagraph
(A) shall be includible in gross income for the taxable year
in which such payment is distributed to the employee.
``(3) Terms relating to flexible spending arrangements.--
For purposes of this section--
``(A) Flexible spending arrangements.--A flexible spending
arrangement is a benefit program which provides employees
with coverage under which specified incurred expenses may be
reimbursed (subject to reimbursement maximums and other
reasonable conditions).
``(B) Health and dependent care arrangements.--The terms
`health flexible spending arrangement' and `dependent care
flexible spending arrangement' means any flexible spending
arrangement (or portion thereof) which provides payments for
expenses incurred for medical care (as defined in section
213(d)) or dependent care (within the meaning of section
129), respectively.''.
(b) Conforming Amendments.--
(1) The heading for section 125 of the Internal Revenue
Code of 1986 is amended by inserting ``AND FLEXIBLE SPENDING
ARRANGEMENTS'' after ``PLANS''.
(2) The item relating to section 125 in the table of
sections for part III of subchapter B of chapter 1 of such
Code is amended by inserting ``and flexible spending
arrangements'' after ``plans''.
(c) Effective Date.--The amendments made by this section
shall take effect on the date of the enactment of this Act.
SA 2833. Mr. JOHANNS submitted an amendment intended to be proposed
to amendment SA 2786 proposed by Mr. Reid (for himself, Mr. Baucus, Mr.
Dodd, and Mr. Harkin) to the bill H.R. 3590, to amend the Internal
Revenue Code of 1986 to modify the first-time homebuyers credit in the
case of members of the Armed Forces and certain other Federal
employees, and for other purposes; which was ordered to lie on the
table; as follows:

On page 436, between lines 14 and 15, insert the following:

SEC. 2008. NONAPPLICATION OF ANY MEDICAID ELIGIBILITY
EXPANSION UNTIL ENROLLMENT OF AT LEAST 90
PERCENT OF CURRENTLY ELIGIBLE INDIVIDUALS.

Notwithstanding any other provision of this Act, with
respect to a State, any provision of this Act or an amendment
made by this Act that imposes a federally-mandated expansion
of eligibility for Medicaid shall not apply to the State
before the date on which the State Medicaid Director
certifies to the Secretary of Health and Human Services that
at least 90 percent of the individuals eligible for medical
assistance under the State's Medicaid plan, including under
any waiver of such plan, are enrolled in the plan or waiver.
SA 2834. Mr. JOHANNS submitted an amendment intended to be proposed
to amendment SA 2786 proposed by Mr. Reid (for himself, Mr. Baucus, Mr.
Dodd, and Mr. Harkin) to the bill H.R. 3590, to amend the Internal
Revenue Code of 1986 to modify the first-time homebuyers credit in the
case of members of the Armed Forces and certain other Federal
employees, and for other purposes; which was ordered to lie on the
table; as follows:

On page 340, between lines 21 and 22, insert the following:
(e) Expedited Judicial Review.--If any action is brought to
challenge the constitutionality of section 5000A of the
Internal Revenue Code of 1986, as added by subsection (b),
the following rules shall apply:
(1) The action shall be filed in the United States District
Court for the District of Columbia and shall be heard by a 3-
judge court convened pursuant to section 2284 of title 28,
United States Code.
(2) A copy of the complaint shall be delivered promptly to
the Clerk of the House of Representatives and the Secretary
of the Senate.
(3) A final decision in the action shall be reviewable only
by appeal directly to the Supreme Court of the United States.
Such appeal shall be taken by the filing of a notice of
appeal within 10 days, and the filing of a jurisdictional
statement within 30 days, of the entry of the final decision.
(4) It shall be the duty of the United States District
Court for the District of Columbia and the Supreme Court of
the United States to advance on the docket and to expedite to
the greatest possible extent the disposition of the action
and appeal.
SA 2835. Mr. JOHANNS submitted an amendment intended to be proposed
to amendment SA 2786 proposed by Mr. Reid (for himself, Mr. Baucus, Mr.
Dodd, and Mr. Harkin) to the bill H.R. 3590, to amend the Internal
Revenue Code of 1986 to modify the first-time homebuyers credit in the
case of members of the Armed Forces and certain other Federal
employees, and for other purposes; which was ordered to lie on the
table; as follows:

On page 1006, between lines 8 and 9, insert the following:
``(vii) The proposal shall not include any recommendation
that would reduce payment rates for items and services
furnished by a critical access hospital (as defined in
section 1861(mm)(1)).
______