S.Amdt. 4374

SA 4374. Mr. KYL submitted an amendment intended to be proposed to
amendment SA 4369 proposed by Mr. Baucus to the bill H.R. 4213, to
amend the Internal Revenue Code of 1986 to extend certain expiring
provisions, and for other purposes; which was ordered to lie on the
table; as follows:

At the end, add the following:

TITLE _--MEDICARE ACCESS IMPROVEMENTS

Subtitle A--Physician Payment Update and Repeal of the Independent
Payment Advisory Board

SEC. _01. PHYSICIAN PAYMENT UPDATE.

(a) Repeal.--The provisions of, and amendments made by,
section 521 of this Act are hereby deemed null, void, and of
no effect.
(b) In General.--Section 1848(d) of the Social Security Act
(42 U.S.C. 1395w-4(d)) is amended--
(1) in paragraph (10), in the heading, by striking
``portion'' and inserting ``the first 5 months ''; and
(2) by adding at the end the following new paragraphs:
``(11) Update for the last 7 months of 2010.--
``(A) In general.--Subject to paragraphs (7)(B), (8)(B),
(9)(B), and (10)(B), in lieu of the update to the single
conversion factor established in paragraph (1)(C) that would
otherwise apply for 2010 for the period beginning on June 1,
2010, and ending on December 31, 2010, the update to the
single conversion factor shall be 1.0 percent.
``(B) No effect on computation of conversion factor for
2011 and subsequent years.--The conversion factor under this
subsection shall be computed under paragraph (1)(A) for 2011
and subsequent years as if subparagraph (A) had never
applied.
``(12) Update for 2011.--
``(A) In general.--Subject to paragraphs (7)(B), (8)(B),
(9)(B), (10)(B), and (11)(B), in lieu of the update to the
single conversion factor established in paragraph (1)(C) that
would otherwise apply for 2011, the update to the single
conversion factor shall be 1.0 percent.
``(B) No effect on computation of conversion factor for
2012 and subsequent years.--The conversion factor under this
subsection shall be computed under paragraph (1)(A) for 2012
and subsequent years as if subparagraph (A) had never
applied.''.
(c) Limitation on Reduction of Conversion Factor for
2012.--Section 1848(d)(4) of the Social Security Act (42
U.S.C. 1395w-4(d)(4)) is amended--
(1) in subparagraph (A), by striking ``adjustment under
subparagraph (F)'' and inserting ``the succeeding provisions
of this paragraph''; and
(2) by adding at the end the following new subparagraph:
``(G) Limitation on reduction of conversion factor for
2012.--In no case may the update determined under
subparagraph (A) for 2012 result in a reduction in the
conversion factor of more than 9 percent.''.

SEC. _02. REPEAL OF THE INDEPENDENT PAYMENT ADVISORY BOARD.

Effective as if included in the enactment of the Patient
Protection and Affordable Care Act (Public Law 111-148), the
provisions of, and amendments made by, sections 3403 and
10320 of such Act are repealed.

Subtitle B--Offsets

PART I--MEDICAL LIABILITY REFORM

SEC. _11. SHORT TITLE.

This part may be cited as the ``Medical Care Access
Protection Act of 2010'' or the ``MCAP Act''.

SEC. _12. FINDINGS AND PURPOSE.

(a) Findings.--
(1) Effect on health care access and costs.--Congress finds
that our current civil justice system is adversely affecting
patient access to health care services, better patient care,
and cost-efficient health care, in that the health care
liability system is a costly and ineffective mechanism for
resolving claims of health care liability and compensating
injured patients, and is a deterrent to the sharing of
information among health care professionals which impedes
efforts to improve patient safety and quality of care.
(2) Effect on interstate commerce.--Congress finds that the
health care and insurance industries are industries affecting
interstate commerce and the health care liability litigation
systems existing throughout the United States are activities
that affect interstate commerce by contributing to the high
costs of health care and premiums for health care liability
insurance purchased by health care system providers.
(3) Effect on federal spending.--Congress finds that the
health care liability litigation systems existing throughout
the United States have a significant effect on the amount,
distribution, and use of Federal funds because of--
(A) the large number of individuals who receive health care
benefits under programs operated or financed by the Federal
Government;
(B) the large number of individuals who benefit because of
the exclusion from Federal taxes of the amounts spent to
provide them with health insurance benefits; and
(C) the large number of health care providers who provide
items or services for which the Federal Government makes
payments.
(b) Purpose.--It is the purpose of this part to implement
reasonable, comprehensive, and effective health care
liability reforms designed to--
(1) improve the availability of health care services in
cases in which health care liability actions have been shown
to be a factor in the decreased availability of services;
(2) reduce the incidence of ``defensive medicine'' and
lower the cost of health care liability insurance, all of
which contribute to the escalation of health care costs;
(3) ensure that persons with meritorious health care injury
claims receive fair and adequate compensation, including
reasonable noneconomic damages;
(4) improve the fairness and cost-effectiveness of our
current health care liability system to resolve disputes
over, and provide compensation for, health care liability by
reducing uncertainty in the amount of compensation provided
to injured individuals; and
(5) provide an increased sharing of information in the
health care system which will reduce unintended injury and
improve patient care.

SEC. _13. DEFINITIONS.

In this part:
(1) Alternative dispute resolution system; adr.--The term
``alternative dispute resolution system'' or ``ADR'' means a
system that provides for the resolution of health care
lawsuits in a manner other than through a civil action
brought in a State or Federal court.
(2) Claimant.--The term ``claimant'' means any person who
brings a health care lawsuit, including a person who asserts
or claims a right to legal or equitable contribution,
indemnity or subrogation, arising out of a health care
liability claim or action, and any person on whose behalf
such a claim is asserted or such an action is brought,
whether deceased, incompetent, or a minor.
(3) Collateral source benefits.--The term ``collateral
source benefits'' means any amount paid or reasonably likely
to be paid in the future to or on behalf of the claimant, or
any service, product or other benefit provided or reasonably
likely to be provided in the future to or on behalf of the
claimant, as a result of the injury or wrongful death,
pursuant to--
(A) any State or Federal health, sickness, income-
disability, accident, or workers' compensation law;
(B) any health, sickness, income-disability, or accident
insurance that provides health benefits or income-disability
coverage;
(C) any contract or agreement of any group, organization,
partnership, or corporation to provide, pay for, or reimburse
the cost of medical, hospital, dental, or income disability
benefits; and
(D) any other publicly or privately funded program.
(4) Compensatory damages.--The term ``compensatory
damages'' means objectively verifiable monetary losses
incurred as a result of the provision of, use of, or payment
for (or failure to provide, use, or pay for) health care
services or medical products,

[[Page S5039]]

such as past and future medical expenses, loss of past and
future earnings, cost of obtaining domestic services, loss of
employment, and loss of business or employment opportunities,
damages 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 (other than loss of
domestic service), hedonic damages, injury to reputation, and
all other nonpecuniary losses of any kind or nature. Such
term includes economic damages and noneconomic damages, as
such terms are defined in this section.
(5) Contingent fee.--The term ``contingent fee'' includes
all compensation to any person or persons which is payable
only if a recovery is effected on behalf of one or more
claimants.
(6) Economic damages.--The term ``economic damages'' means
objectively verifiable monetary losses incurred as a result
of the provision of, use of, or payment for (or failure to
provide, use, or pay for) health care services or medical
products, such as past and future medical expenses, loss of
past and future earnings, cost of obtaining domestic
services, loss of employment, and loss of business or
employment opportunities.
(7) Health care goods or services.--The term ``health care
goods or services'' means any goods or services provided by a
health care institution, provider, or by any individual
working under the supervision of a health care provider, that
relates to the diagnosis, prevention, care, or treatment of
any human disease or impairment, or the assessment of the
health of human beings.
(8) Health care institution.--The term ``health care
institution'' means any entity licensed under Federal or
State law to provide health care services (including but not
limited to ambulatory surgical centers, assisted living
facilities, emergency medical services providers, hospices,
hospitals and hospital systems, nursing homes, or other
entities licensed to provide such services).
(9) Health care lawsuit.--The term ``health care lawsuit''
means any health care liability claim concerning the
provision of health care goods or services affecting
interstate commerce, or any health care liability action
concerning the provision of (or the failure to provide)
health care goods or services affecting interstate commerce,
brought in a State or Federal court or pursuant to an
alternative dispute resolution system, against a health care
provider or a health care institution 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.
(10) Health care liability action.--The term ``health care
liability action'' means a civil action brought in a State or
Federal Court or pursuant to an alternative dispute
resolution system, against a health care provider or a health
care institution regardless of the theory of liability on
which the claim is based, or the number of plaintiffs,
defendants, or other parties, or the number of causes of
action, in which the claimant alleges a health care liability
claim.
(11) Health care liability claim.--The term ``health care
liability claim'' means a demand by any person, whether or
not pursuant to ADR, against a health care provider or health
care institution, including third-party claims, cross-claims,
counter-claims, or contribution claims, which are based upon
the provision of, use of, or payment for (or the failure to
provide, use, or pay for) health care services, regardless of
the theory of liability on which the claim is based, or the
number of plaintiffs, defendants, or other parties, or the
number of causes of action.
(12) Health care provider.--
(A) In general.--The term ``health care provider'' means
any person (including but not limited to a physician (as
defined by section 1861(r) of the Social Security Act (42
U.S.C. 1395x(r)), registered nurse, dentist, podiatrist,
pharmacist, chiropractor, or optometrist) required by State
or Federal law 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.
(B) Treatment of certain professional associations.--For
purposes of this part, a professional association that is
organized under State law by an individual physician or group
of physicians, a partnership or limited liability partnership
formed by a group of physicians, a nonprofit health
corporation certified under State law, or a company formed by
a group of physicians under State law shall be treated as a
health care provider under subparagraph (A).
(13) Malicious intent to injure.--The term ``malicious
intent to injure'' means intentionally causing or attempting
to cause physical injury other than providing health care
goods or services.
(14) Noneconomic damages.--The term ``noneconomic damages''
means damages 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 (other than loss of
domestic service), hedonic damages, injury to reputation, and
all other nonpecuniary losses of any kind or nature.
(15) 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 or health care institution. Punitive damages
are neither economic nor noneconomic damages.
(16) Recovery.--The term ``recovery'' means the net sum
recovered after deducting any disbursements or costs incurred
in connection with prosecution or settlement of the claim,
including all costs paid or advanced by any person. Costs of
health care incurred by the plaintiff and the attorneys'
office overhead costs or charges for legal services are not
deductible disbursements or costs for such purpose.
(17) State.--The term ``State'' means each of the several
States, the District of Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands, Guam, American Samoa, the Northern
Mariana Islands, the Trust Territory of the Pacific Islands,
and any other territory or possession of the United States,
or any political subdivision thereof.

SEC. _14. ENCOURAGING SPEEDY RESOLUTION OF CLAIMS.

(a) In General.--Except as otherwise provided for in this
section, the time for the commencement of a health care
lawsuit shall be 3 years after the date of manifestation of
injury or 1 year after the claimant discovers, or through the
use of reasonable diligence should have discovered, the
injury, whichever occurs first.
(b) General Exception.--The time for the commencement of a
health care lawsuit shall not exceed 3 years after the date
of manifestation of injury unless the tolling of time was
delayed as a result of--
(1) fraud;
(2) intentional concealment; or
(3) the presence of a foreign body, which has no
therapeutic or diagnostic purpose or effect, in the person of
the injured person.
(c) Minors.--An action by a minor shall be commenced within
3 years from the date of the alleged manifestation of injury
except that if such minor is under the full age of 6 years,
such action shall be commenced within 3 years of the
manifestation of injury, or prior to the eighth birthday of
the minor, whichever provides a longer period. Such time
limitation shall be tolled for minors for any period during
which a parent or guardian and a health care provider or
health care institution have committed fraud or collusion in
the failure to bring an action on behalf of the injured
minor.
(d) Rule 11 Sanctions.--Whenever a Federal or State court
determines (whether by motion of the parties or whether on
the motion of the court) that there has been a violation of
Rule 11 of the Federal Rules of Civil Procedure (or a similar
violation of applicable State court rules) in a health care
liability action to which this part applies, the court shall
impose upon the attorneys, law firms, or pro se litigants
that have violated Rule 11 or are responsible for the
violation, an appropriate sanction, which shall include an
order to pay the other party or parties for the reasonable
expenses incurred as a direct result of the filing of the
pleading, motion, or other paper that is the subject of the
violation, including a reasonable attorneys' fee. Such
sanction shall be sufficient to deter repetition of such
conduct or comparable conduct by others similarly situated,
and to compensate the party or parties injured by such
conduct.

SEC. _15. COMPENSATING PATIENT INJURY.

(a) Unlimited Amount of Damages for Actual Economic Losses
in Health Care Lawsuits.--In any health care lawsuit, nothing
in this part shall limit the recovery by a claimant of the
full amount of the available economic damages,
notwithstanding the limitation contained in subsection (b).
(b) Additional Noneconomic Damages.--
(1) Health care providers.--In any health care lawsuit
where final judgment is rendered against a health care
provider, the amount of noneconomic damages recovered from
the provider, if otherwise available under applicable Federal
or State law, may be as much as $250,000, regardless of the
number of parties other than a health care institution
against whom the action is brought or the number of separate
claims or actions brought with respect to the same
occurrence.
(2) Health care institutions.--
(A) Single institution.--In any health care lawsuit where
final judgment is rendered against a single health care
institution, the amount of noneconomic damages recovered from
the institution, if otherwise available under applicable
Federal or State law, may be as much as $250,000, regardless
of the number of parties against whom the action is brought
or the number of separate claims or actions brought with
respect to the same occurrence.
(B) Multiple institutions.--In any health care lawsuit
where final judgment is rendered against more than one health
care institution, the amount of noneconomic damages recovered
from each institution, if otherwise available under
applicable Federal or State law, may be as much as $250,000,
regardless of the number of parties against whom the action
is brought or the number of separate claims or actions
brought with respect to the same occurrence, except that the
total amount recovered from all such institutions in such
lawsuit shall not exceed $500,000.
(c) No Discount of Award for Noneconomic Damages.--In any
health care lawsuit--
(1) an award for future noneconomic damages shall not be
discounted to present value;
(2) the jury shall not be informed about the maximum award
for noneconomic damages under subsection (b);

[[Page S5040]]

(3) an award for noneconomic damages in excess of the
limitations provided for in subsection (b) shall be reduced
either before the entry of judgment, or by amendment of the
judgment after entry of judgment, and such reduction shall be
made before accounting for any other reduction in damages
required by law; and
(4) if separate awards are rendered for past and future
noneconomic damages and the combined awards exceed the
limitations described in subsection (b), the future
noneconomic damages shall be reduced first.
(d) Fair Share Rule.--In any health care lawsuit, each
party shall be liable for that party's several share of any
damages only and not for the share of any other person. Each
party shall be liable only for the amount of damages
allocated to such party in direct proportion to such party's
percentage of responsibility. A separate judgment shall be
rendered against each such party for the amount allocated to
such party. For purposes of this section, the trier of fact
shall determine the proportion of responsibility of each
party for the claimant's harm.

SEC. _16. MAXIMIZING PATIENT RECOVERY.

(a) Court Supervision of Share of Damages Actually Paid to
Claimants.--
(1) In general.--In any health care lawsuit, the court
shall supervise the arrangements for payment of damages to
protect against conflicts of interest that may have the
effect of reducing the amount of damages awarded that are
actually paid to claimants.
(2) Contingency fees.--
(A) In general.--In any health care lawsuit in which the
attorney for a party claims a financial stake in the outcome
by virtue of a contingent fee, the court shall have the power
to restrict the payment of a claimant's damage recovery to
such attorney, and to redirect such damages to the claimant
based upon the interests of justice and principles of equity.
(B) Limitation.--The total of all contingent fees for
representing all claimants in a health care lawsuit shall not
exceed the following limits:
(i) 40 percent of the first $50,000 recovered by the
claimant(s).
(ii) 33\1/3\ percent of the next $50,000 recovered by the
claimant(s).
(iii) 25 percent of the next $500,000 recovered by the
claimant(s).
(iv) 15 percent of any amount by which the recovery by the
claimant(s) is in excess of $600,000.
(b) Applicability.--
(1) In general.--The limitations in subsection (a) shall
apply whether the recovery is by judgment, settlement,
mediation, arbitration, or any other form of alternative
dispute resolution.
(2) Minors.--In a health care lawsuit involving a minor or
incompetent person, a court retains the authority to
authorize or approve a fee that is less than the maximum
permitted under this section.
(c) Expert Witnesses.--
(1) Requirement.--No individual shall be qualified to
testify as an expert witness concerning issues of negligence
in any health care lawsuit against a defendant unless such
individual--
(A) except as required under paragraph (2), is a health
care professional who--
(i) is appropriately credentialed or licensed in 1 or more
States to deliver health care services; and
(ii) typically treats the diagnosis or condition or
provides the type of treatment under review; and
(B) can demonstrate by competent evidence that, as a result
of training, education, knowledge, and experience in the
evaluation, diagnosis, and treatment of the disease or injury
which is the subject matter of the lawsuit against the
defendant, the individual was substantially familiar with
applicable standards of care and practice as they relate to
the act or omission which is the subject of the lawsuit on
the date of the incident.
(2) Physician review.--In a health care lawsuit, if the
claim of the plaintiff involved treatment that is recommended
or provided by a physician (allopathic or osteopathic), an
individual shall not be qualified to be an expert witness
under this subsection with respect to issues of negligence
concerning such treatment unless such individual is a
physician.
(3) Specialties and subspecialties.--With respect to a
lawsuit described in paragraph (1), a court shall not permit
an expert in one medical specialty or subspecialty to testify
against a defendant in another medical specialty or
subspecialty unless, in addition to a showing of substantial
familiarity in accordance with paragraph (1)(B), there is a
showing that the standards of care and practice in the two
specialty or subspecialty fields are similar.
(4) Limitation.--The limitations in this subsection shall
not apply to expert witnesses testifying as to the degree or
permanency of medical or physical impairment.

SEC. _17. ADDITIONAL HEALTH BENEFITS.

(a) In General.--The amount of any damages received by a
claimant in any health care lawsuit shall be reduced by the
court by the amount of any collateral source benefits to
which the claimant is entitled, less any insurance premiums
or other payments made by the claimant (or by the spouse,
parent, child, or legal guardian of the claimant) to obtain
or secure such benefits.
(b) Preservation of Current Law.--Where a payor of
collateral source benefits has a right of recovery by
reimbursement or subrogation and such right is permitted
under Federal or State law, subsection (a) shall not apply.
(c) Application of Provision.--This section shall apply to
any health care lawsuit that is settled or resolved by a fact
finder.

SEC. _18. PUNITIVE DAMAGES.

(a) Punitive Damages Permitted.--
(1) In general.--Punitive damages may, if otherwise
available under applicable State or Federal law, be awarded
against any person in a health care lawsuit only if it is
proven by clear and convincing evidence that such person
acted with malicious intent to injure the claimant, or that
such person deliberately failed to avoid unnecessary injury
that such person knew the claimant was substantially certain
to suffer.
(2) Filing of lawsuit.--No demand for punitive damages
shall be included in a health care lawsuit as initially
filed. A court may allow a claimant to file an amended
pleading for punitive damages only upon a motion by the
claimant and after a finding by the court, upon review of
supporting and opposing affidavits or after a hearing, after
weighing the evidence, that the claimant has established by a
substantial probability that the claimant will prevail on the
claim for punitive damages.
(3) Separate proceeding.--At the request of any party in a
health care lawsuit, the trier of fact shall consider in a
separate proceeding--
(A) whether punitive damages are to be awarded and the
amount of such award; and
(B) the amount of punitive damages following a
determination of punitive liability.
If a separate proceeding is requested, evidence relevant only
to the claim for punitive damages, as determined by
applicable State law, shall be inadmissible in any proceeding
to determine whether compensatory damages are to be awarded.
(4) Limitation where no compensatory damages are awarded.--
In any health care lawsuit where no judgment for compensatory
damages is rendered against a person, no punitive damages may
be awarded with respect to the claim in such lawsuit against
such person.
(b) Determining Amount of Punitive Damages.--
(1) Factors considered.--In determining the amount of
punitive damages under this section, the trier of fact shall
consider only the following:
(A) the severity of the harm caused by the conduct of such
party;
(B) the duration of the conduct or any concealment of it by
such party;
(C) the profitability of the conduct to such party;
(D) the number of products sold or medical procedures
rendered for compensation, as the case may be, by such party,
of the kind causing the harm complained of by the claimant;
(E) any criminal penalties imposed on such party, as a
result of the conduct complained of by the claimant; and
(F) the amount of any civil fines assessed against such
party as a result of the conduct complained of by the
claimant.
(2) Maximum award.--The amount of punitive damages awarded
in a health care lawsuit may not exceed an amount equal to
two times the amount of economic damages awarded in the
lawsuit or $250,000, whichever is greater. The jury shall not
be informed of the limitation under the preceding sentence.
(c) Liability of Health Care Providers.--
(1) In general.--A health care provider who prescribes, or
who dispenses pursuant to a prescription, a drug, biological
product, or medical device approved by the Food and Drug
Administration, for an approved indication of the drug,
biological product, or medical device, shall not be named as
a party to a product liability lawsuit invoking such drug,
biological product, or medical device and shall not be liable
to a claimant in a class action lawsuit against the
manufacturer, distributor, or product seller of such drug,
biological product, or medical device.
(2) Medical product.--The term ``medical product'' means a
drug or device intended for humans. The terms ``drug'' and
``device'' have the meanings given such terms in sections
201(g)(1) and 201(h) of the Federal Food, Drug and Cosmetic
Act (21 U.S.C. 321), respectively, including any component or
raw material used therein, but excluding health care
services.

SEC. _19. AUTHORIZATION OF PAYMENT OF FUTURE DAMAGES TO
CLAIMANTS IN HEALTH CARE LAWSUITS.

(a) In General.--In any health care lawsuit, if an award of
future damages, without reduction to present value, equaling
or exceeding $50,000 is made against a party with sufficient
insurance or other assets to fund a periodic payment of such
a judgment, the court shall, at the request of any party,
enter a judgment ordering that the future damages be paid by
periodic payments in accordance with the Uniform Periodic
Payment of Judgments Act promulgated by the National
Conference of Commissioners on Uniform State Laws.
(b) Applicability.--This section applies to all actions
which have not been first set for trial or retrial before the
effective date of this part.

SEC. _20. EFFECT ON OTHER LAWS.

(a) General Vaccine Injury.--
(1) In general.--To the extent that title XXI of the Public
Health Service Act establishes a Federal rule of law
applicable to a civil action brought for a vaccine-related
injury or death--
(A) this part shall not affect the application of the rule
of law to such an action; and

[[Page S5041]]

(B) any rule of law prescribed by this part in conflict
with a rule of law of such title XXI shall not apply to such
action.
(2) Exception.--If there is an aspect of a civil action
brought for a vaccine-related injury or death to which a
Federal rule of law under title XXI of the Public Health
Service Act does not apply, then this part or otherwise
applicable law (as determined under this part) will apply to
such aspect of such action.
(b) Smallpox Vaccine Injury.--
(1) In general.--To the extent that part C of title II of
the Public Health Service Act establishes a Federal rule of
law applicable to a civil action brought for a smallpox
vaccine-related injury or death--
(A) this part shall not affect the application of the rule
of law to such an action; and
(B) any rule of law prescribed by this part in conflict
with a rule of law of such part C shall not apply to such
action.
(2) Exception.--If there is an aspect of a civil action
brought for a smallpox vaccine-related injury or death to
which a Federal rule of law under part C of title II of the
Public Health Service Act does not apply, then this part or
otherwise applicable law (as determined under this part) will
apply to such aspect of such action.
(c) Other Federal Law.--Except as provided in this section,
nothing in this part shall be deemed to affect any defense
available, or any limitation on liability that applies to, a
defendant in a health care lawsuit or action under any other
provision of Federal law.

SEC. _21. STATE FLEXIBILITY AND PROTECTION OF STATES' RIGHTS.

(a) Health Care Lawsuits.--The provisions governing health
care lawsuits set forth in this part shall preempt, subject
to subsections (b) and (c), State law to the extent that
State law prevents the application of any provisions of law
established by or under this part. The provisions governing
health care lawsuits set forth in this part supersede chapter
171 of title 28, United States Code, to the extent that such
chapter--
(1) provides for a greater amount of damages or contingent
fees, a longer period in which a health care lawsuit may be
commenced, or a reduced applicability or scope of periodic
payment of future damages, than provided in this part; or
(2) prohibits the introduction of evidence regarding
collateral source benefits.
(b) Preemption of Certain State Laws.--No provision of this
part shall be construed to preempt any State law (whether
effective before, on, or after the date of the enactment of
this part) that specifies a particular monetary amount of
compensatory or punitive damages (or the total amount of
damages) that may be awarded in a health care lawsuit,
regardless of whether such monetary amount is greater or
lesser than is provided for under this part, notwithstanding
section _15(a).
(c) Protection of State's Rights and Other Laws.--
(1) In general.--Any issue that is not governed by a
provision of law established by or under this part (including
the State standards of negligence) shall be governed by
otherwise applicable Federal or State law.
(2) Rule of construction.--Nothing in this part shall be
construed to--
(A) preempt or supersede any Federal or State law that
imposes greater procedural or substantive protections (such
as a shorter statute of limitations) for a health care
provider or health care institution from liability, loss, or
damages than those provided by this part;
(B) preempt or supercede any State law that permits and
provides for the enforcement of any arbitration agreement
related to a health care liability claim whether enacted
prior to or after the date of enactment of this part;
(C) create a cause of action that is not otherwise
available under Federal or State law; or
(D) affect the scope of preemption of any other Federal
law.

SEC. _22. APPLICABILITY; EFFECTIVE DATE.

This part shall apply to any health care lawsuit brought in
a Federal or State court, or subject to an alternative
dispute resolution system, that is initiated on or after the
date of the enactment of this part, except that any health
care lawsuit arising from an injury occurring prior to the
date of enactment of this part shall be governed by the
applicable statute of limitations provisions in effect at the
time the injury occurred.

PART II--ADDITIONAL PROVISIONS

SEC. _31. EXPANSION OF AFFORDABILITY EXCEPTION TO INDIVIDUAL
MANDATE.

Section 5000A(e)(1)(A) of the Internal Revenue Code of
1986, as added by section 1501(b) of the Patient Protection
and Affordable Care Act (Public Law 111-148), is amended by
striking ``8 percent'' and inserting ``5 percent''.

SEC. _32. REDUCING EXCESSIVE DUPLICATION, OVERHEAD AND
SPENDING WITHIN THE FEDERAL GOVERNMENT.

(a) Reducing Duplication.--The Director of the Office of
Management Budget and the Secretary of each department (or
head of each independent agency) shall work with the Chairman
and ranking member of the relevant congressional
appropriations subcommittees and the congressional
authorizing committees and the Director of the Office of
Management Budget to consolidate programs with duplicative
goals, missions, and initiatives.
(b) Controlling Bureaucratic Overhead Costs.--Each Federal
department and agency shall reduce annual administrative
expenses by at least five percent in fiscal year 2011.
(c) Rescissions of Excessive Spending.--There is hereby
rescinded an amount equal to 5 percent of--
(1) the budget authority provided (or obligation limit
imposed) for fiscal year 2010 for any discretionary account
in any other fiscal year 2010 appropriation Act;
(2) the budget authority provided in any advance
appropriation for fiscal year 2010 for any discretionary
account in any prior fiscal year appropriation Act; and
(3) the contract authority provided in fiscal year 2010 for
any program subject to limitation contained in any fiscal
year 2010 appropriation Act.
(d) Proportionate Application.--Any rescission made by
subsection (a) shall be applied proportionately--
(1) to each discretionary account and each item of budget
authority described in such subsection; and
(2) within each such account and item, to each program,
project, and activity (with programs, projects, and
activities as delineated in the appropriation Act or
accompanying reports for the relevant fiscal year covering
such account or item, or for accounts and items not included
in appropriation Acts, as delineated in the most recently
submitted President's budget)
(e) Exceptions.--This section shall not apply to
discretionary authority appropriated or otherwise made
available to the Department of Veterans Affairs and the
Department of Defense.
(f) OMB Report.--Within 30 days after the date of enactment
of this section, the Director of the Office of Management and
Budget shall submit to the Committees on Appropriations of
the House of Representatives and the Senate a report
specifying the account and amount of each rescission made
pursuant to this section and the report shall be posted on
the public website of the Office of Management and Budget.

SEC. _33. REDUCING BUDGETS OF MEMBERS OF CONGRESS.

(a) In General.--Of the funds made available under Public
Law 111-68 for the legislative branch, $100,000,000 in
unobligated balances are permanently rescinded on a pro rata
basis: Provided, That the rescissions made by the section
shall not apply to funds made available to the Capitol
Police.
(b) Reporting.--The Director of the Office of Management
and Budget shall report to Congress the amounts rescinded
under subsection (a).

SEC. _34. RESCINDING UNSPENT FEDERAL FUNDS.

(a) In General.--Notwithstanding any other provision of
law, of all available unobligated Federal funds,
$80,000,000,000 in appropriated discretionary unexpired funds
are rescinded.
(b) Implementation.--Not later than 60 days after the date
of enactment of this Act, the Director of the Office of
Management and Budget shall--
(1) identify the accounts and amounts rescinded to
implement subsection (a); and
(2) submit a report to the Secretary of the Treasury and
Congress of the accounts and amounts identified under
paragraph (1) for rescission.
(c) Exception.--This section shall not apply to the
unobligated Federal funds of the Department of Defense or the
Department of Veterans Affairs.

SEC. _35. USE OF STIMULUS FUNDS TO OFFSET SPENDING.

The unobligated balance of each amount appropriated or made
available under the American Recovery and Reinvestment Act of
2009 (Public Law 111-5) (other than under title X of division
A of such Act) is rescinded such that the aggregate amount of
such rescissions equal $37,500,000,000 in order to offset the
net increase in spending resulting from the provisions of,
and amendments made by, this Act. The Director of the Office
of Management and Budget shall report to each congressional
committee the amounts so rescinded within the jurisdiction of
such committee.
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