S.Amdt. 3263

SA 3263. Mr. BAUCUS (for himself, Ms. Snowe, Mr. Carper, Mrs.
Lincoln, and Mr. Bennet) 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 __--ALTERNATIVE TO MEDICAL TORT LITIGATION

SEC. _01. SHORT TITLE.

This title may be cited as the ``Fair and Reliable Medical
Justice Act''.

SEC. _02. PURPOSES.

The purposes of this title are--
(1) to restore fairness and reliability to the medical
justice system by fostering alternatives to current medical
tort litigation that promote disclosure of health care errors
and provide prompt, fair, and reasonable compensation to
patients who are injured by health care errors;

[[Page S13398]]

(2) to promote patient safety through disclosure of health
care errors; and
(3) to support and assist States in developing such
alternatives.

SEC. _03. STATE DEMONSTRATION PROGRAMS TO EVALUATE
ALTERNATIVES TO CURRENT MEDICAL TORT
LITIGATION.

Part P of title III of the Public Health Service Act (42
U.S.C. 280g et seq.), as amended by this Act, is further
amended by adding at the end the following:

``SEC. 399V-2. STATE DEMONSTRATION PROGRAMS TO EVALUATE
ALTERNATIVES TO CURRENT MEDICAL TORT
LITIGATION.

``(a) In General.--The Secretary is authorized to award
demonstration grants to States for the development,
implementation, and evaluation of alternatives to current
tort litigation for resolving disputes over injuries
allegedly caused by health care providers or health care
organizations. In awarding such grants, the Secretary shall
ensure the diversity of the alternatives so funded.
``(b) Duration.--The Secretary may award grants under
subsection (a) for a period not to exceed 5 years.
``(c) Conditions for Demonstration Grants.--
``(1) Requirements.--Each State desiring a grant under
subsection (a) shall develop an alternative to current tort
litigation that--
``(A) allows for the resolution of disputes over injuries
allegedly caused by health care providers or health care
organizations; and
``(B) promotes a reduction of health care errors by
encouraging the collection and analysis of patient safety
data related to disputes resolved under subparagraph (A) by
organizations that engage in efforts to improve patient
safety and the quality of health care.
``(2) Alternative to current tort litigation.--Each State
desiring a grant under subsection (a) shall demonstrate how
the proposed alternative described in paragraph (1)(A)--
``(A) makes the medical liability system more reliable by
increasing the availability of prompt and fair resolution of
disputes;
``(B) encourages the efficient resolution of disputes;
``(C) encourages the disclosure of health care errors;
``(D) enhances patient safety by detecting, analyzing, and
helping to reduce medical errors and adverse events;
``(E) improves access to liability insurance;
``(F) fully informs patients about the differences in the
alternative and current tort litigation;
``(G) provides patients the ability to opt out of or
voluntarily withdraw from participating in the alternative at
any time and to pursue other options, including litigation,
outside the alternative;
``(H) would not conflict with State law at the time of the
application in a way that would prohibit the adoption of an
alternative to current tort litigation; and
``(I) would not limit or curtail a patient's existing legal
rights, ability to file a claim in or access a State's legal
system, or otherwise abrogate a patient's ability to file a
medical malpractice claim.
``(3) Sources of compensation.--Each State desiring a grant
under subsection (a) shall identify the sources from and
methods by which compensation would be paid for claims
resolved under the proposed alternative to current tort
litigation, which may include public or private funding
sources, or a combination of such sources. Funding methods
shall to the extent practicable provide financial incentives
for activities that improve patient safety.
``(4) Scope.--
``(A) In general.--Each State desiring a grant under
subsection (a) shall establish a scope of jurisdiction (such
as Statewide, designated geographic region, a designated area
of health care practice, or a designated group of health care
providers or health care organizations) for the proposed
alternative to current tort litigation that is sufficient to
evaluate the effects of the alternative. No scope of
jurisdiction shall be established under this paragraph that
is based on a health care payer or patient population.
``(B) Notification of patients.--A State shall demonstrate
how patients would be notified that they are receiving health
care services that fall within such scope, and the process by
which they may opt out of or voluntarily withdraw from
participating in the alternative. The decision of the patient
whether to participate or continue participating in the
alternative process shall be made at any time and shall not
be limited in any way.
``(5) Preference in awarding demonstration grants.--In
awarding grants under subsection (a), the Secretary shall
give preference to States--
``(A) that have developed the proposed alternative through
substantive consultation with relevant stakeholders,
including patient advocates, health care providers and health
care organizations, attorneys with expertise in representing
patients and health care providers, medical malpractice
insurers, and patient safety experts;
``(B) that make proposals that are likely to enhance
patient safety by detecting, analyzing, and helping to reduce
medical errors and adverse events; and
``(C) that make proposals that are likely to improve access
to liability insurance.
``(d) Application.--
``(1) In general.--Each State desiring a grant under
subsection (a) shall submit to the Secretary an application,
at such time, in such manner, and containing such information
as the Secretary may require.
``(2) Review panel.--
``(A) In general.--In reviewing applications under
paragraph (1), the Secretary shall consult with a review
panel composed of relevant experts appointed by the
Comptroller General.
``(B) Composition.--
``(i) Nominations.--The Comptroller General shall solicit
nominations from the public for individuals to serve on the
review panel.
``(ii) Appointment.--The Comptroller General shall appoint,
at least 9 but not more than 13, highly qualified and
knowledgeable individuals to serve on the review panel and
shall ensure that the following entities receive fair
representation on such panel:

``(I) Patient advocates.
``(II) Health care providers and health care organizations.
``(III) Attorneys with expertise in representing patients
and health care providers.
``(IV) Medical malpractice insurers.
``(V) State officials.
``(VI) Patient safety experts.

``(C) Chairperson.--The Comptroller General, or an
individual within the Government Accountability Office
designated by the Comptroller General, shall be the
chairperson of the review panel.
``(D) Availability of information.--The Comptroller General
shall make available to the review panel such information,
personnel, and administrative services and assistance as the
review panel may reasonably require to carry out its duties.
``(E) Information from agencies.--The review panel may
request directly from any department or agency of the United
States any information that such panel considers necessary to
carry out its duties. To the extent consistent with
applicable laws and regulations, the head of such department
or agency shall furnish the requested information to the
review panel.
``(e) Reports.--
``(1) By state.--Each State receiving a grant under
subsection (a) shall submit to the Secretary an annual report
evaluating the effectiveness of activities funded with grants
awarded under such subsection. Such report shall, at a
minimum, include the impact of the activities funded on
patient safety and on the availability and price of medical
liability insurance.
``(2) By secretary.--The Secretary shall submit to Congress
an annual compendium of the reports submitted under paragraph
(1) and an analysis of the activities funded under subsection
(a) that examines any differences that result from such
activities in terms of the quality of care, number and nature
of medical errors, medical resources used, length of time for
dispute resolution, and the availability and price of
liability insurance.
``(f) Technical Assistance.--
``(1) In general.--The Secretary shall provide technical
assistance to the States applying for or awarded grants under
subsection (a).
``(2) Requirements.--Technical assistance under paragraph
(1) shall include--
``(A) guidance on non-economic damages, including the
consideration of individual facts and circumstances in
determining appropriate payment, guidance on identifying
avoidable injuries, and guidance on disclosure to patients of
health care errors and adverse events; and
``(B) the development, in consultation with States, of
common definitions, formats, and data collection
infrastructure for States receiving grants under this section
to use in reporting to facilitate aggregation and analysis of
data both within and between States.
``(3) Use of common definitions, formats, and data
collection infrastructure.--States not receiving grants under
this section may also use the common definitions, formats,
and data collection infrastructure developed under paragraph
(2)(B).
``(g) Evaluation.--
``(1) In general.--The Secretary, in consultation with the
review panel established under subsection (d)(2), shall enter
into a contract with an appropriate research organization to
conduct an overall evaluation of the effectiveness of grants
awarded under subsection (a) and to annually prepare and
submit a report to Congress. Such an evaluation shall begin
not later than 18 months following the date of implementation
of the first program funded by a grant under subsection (a).
``(2) Contents.--The evaluation under paragraph (1) shall
include--
``(A) an analysis of the effects of the grants awarded
under subsection (a) with regard to the measures described in
paragraph (3);
``(B) for each State, an analysis of the extent to which
the alternative developed under subsection (c)(1) is
effective in meeting the elements described in subsection
(c)(2);
``(C) a comparison among the States receiving grants under
subsection (a) of the effectiveness of the various
alternatives developed by such States under subsection
(c)(1);
``(D) a comparison, considering the measures described in
paragraph (3), of States receiving grants approved under
subsection (a) and similar States not receiving such grants;
and
``(E) a comparison, with regard to the measures described
in paragraph (3), of--
``(i) States receiving grants under subsection (a);

[[Page S13399]]

``(ii) States that enacted, prior to the date of enactment
of the Patient Protection and Affordable Care Act, any cap on
non-economic damages; and
``(iii) States that have enacted, prior to the date of
enactment of the Patient Protection and Affordable Care Act,
a requirement that the complainant obtain an opinion
regarding the merit of the claim, although the substance of
such opinion may have no bearing on whether the complainant
may proceed with a case.
``(3) Measures.--The evaluations under paragraph (2) shall
analyze and make comparisons on the basis of--
``(A) the nature and number of disputes over injuries
allegedly caused by health care providers or health care
organizations;
``(B) the nature and number of claims in which tort
litigation was pursued despite the existence of an
alternative under subsection (a);
``(C) the disposition of disputes and claims, including the
length of time and estimated costs to all parties;
``(D) the medical liability environment;
``(E) health care quality;
``(F) patient safety in terms of detecting, analyzing, and
helping to reduce medical errors and adverse events;
``(G) patient and health care provider and organization
satisfaction with the alternative under subsection (a) and
with the medical liability environment; and
``(H) impact on utilization of medical services,
appropriately adjusted for risk.
``(4) Funding.--The Secretary shall reserve 5 percent of
the amount appropriated in each fiscal year under subsection
(k) to carry out this subsection.
``(h) MedPAC and MACPAC Reports.--
``(1) MedPAC.--The Medicare Payment Advisory Commission
shall conduct an independent review of the alternatives to
current tort litigation that are implemented under grants
under subsection (a) to determine the impact of such
alternatives on the Medicare program under title XVIII of the
Social Security Act, and its beneficiaries.
``(2) MACPAC.--The Medicaid and CHIP Payment and Access
Commission shall conduct an independent review of the
alternatives to current tort litigation that are implemented
under grants under subsection (a) to determine the impact of
such alternatives on the Medicaid or CHIP programs under
titles XIX and XXI of the Social Security Act, and their
beneficiaries.
``(3) Reports.--Not later than December 31, 2016, the
Medicare Payment Advisory Commission and the Medicaid and
CHIP Payment and Access Commission shall each submit to
Congress a report that includes the findings and
recommendations of each respective Commission based on
independent reviews conducted under paragraphs (1) and (2),
including an analysis of the impact of the alternatives
reviewed on the efficiency and effectiveness of the
respective programs.
``(i) Option To Provide for Initial Planning Grants.--Of
the funds appropriated pursuant to subsection (k), the
Secretary may use a portion not to exceed $500,000 per State
to provide planning grants to such States for the development
of demonstration project applications meeting the criteria
described in subsection (c). In selecting States to receive
such planning grants, the Secretary shall give preference to
those States in which State law at the time of the
application would not prohibit the adoption of an alternative
to current tort litigation.
``(j) Definitions.--In this section:
``(1) Health care services.--The term `health care
services' means any services provided by a health care
provider, or by any individual working under the supervision
of a health care provider, that relate to--
``(A) the diagnosis, prevention, or treatment of any human
disease or impairment; or
``(B) the assessment of the health of human beings.
``(2) Health care organization.--The term `health care
organization' means any individual or entity which is
obligated to provide, pay for, or administer health benefits
under any health plan.
``(3) Health care provider.--The term `health care
provider' means any individual or entity--
``(A) licensed, registered, or certified under Federal or
State laws or regulations to provide health care services; or
``(B) required to be so licensed, registered, or certified
but that is exempted by other statute or regulation.
``(k) Authorization of Appropriations.--There are
authorized to be appropriated, such sums as may be necessary
to carry out this section for each of fiscal years 2011
through 2015.
``(l) Current State Efforts to Establish Alternative to
Tort Litigation.--Nothing in this section shall be construed
to limit any prior, current, or future efforts of any State
to establish any alternative to tort litigation.
``(m) Rule of Construction.--Nothing in this section shall
be construed as limiting states' authority over or
responsibility for their state justice systems.''.
______