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Title II — Medicare and Medicaid Reforms

H.R. 1332 · 116th Congress · Feb 25, 2019 · Lineage

II Medicare and Medicaid Reforms

A

Sec. 201 Flexible block grant option for States

Title XIX of the Social Security Act is amended—
(1)
in section 1903 (42 U.S.C. 1396b)—
(A)
in subsection (a), in the matter before paragraph (1), by inserting “and section 1903A(a)” after “except as otherwise provided in this section”; and
(B)
in subsection (d)(1), by striking “to which” and inserting “to which, subject to section 1903A(a),”; and
(2)
by inserting after such section 1903 the following new section:

“1903A. Flexible block grant option for States

“(a) In general—In the case of a State that elects the option of applying this section for a 10-fiscal-year period (beginning no earlier than fiscal year 2020 and, at the State option, for any succeeding 10-fiscal-year period) and that has a plan approved by the Secretary under subsection (b) to carry out the option for such period—

“(1) the State shall receive, instead of amounts otherwise payable to the State under this title for medical assistance for block grant individuals within the applicable block grant category (as defined in subsection (f)) for the State during the period in which the election is in effect, the amount specified in subsection (d);

“(2) the payment under this section may only be used consistent with the State plan under subsection (b) for block grant health care assistance (as defined in subsection (g)); and

“(3) with respect to block grant individuals within the applicable block grant category for the State for which block grant health care assistance is made available under this section, such assistance shall be instead of medical assistance otherwise provided to the individual under this title.

“(b) State plan for administering block grant option

“(1) In general—No payment shall be made under this section to a State pursuant to an election for a 10-fiscal-year period under subsection (a) unless the State has a plan, approved under paragraph (2), for such period that specifies—

“(A) the applicable block grant category with respect to which the State will apply the option under this section for such period;

“(B) the conditions for eligibility of block grant individuals within such applicable block grant category for block grant health care assistance under the option, which shall be instead of other conditions for eligibility under this title, except that in the case of a State that has elected the applicable block grant category described in—

“(i) paragraph (1) of subsection (f), the plan must provide for eligibility for pregnant women and children required to be provided medical assistance under subsections (a)(10)(A)(i) and (e)(4) of section 1902; or

“(ii) paragraph (2) of subsection (f), the plan must provide for eligibility for pregnant women required to be provided medical assistance under subsection (a)(10)(A)(i); and

“(C) the types of items and services, the amount, duration, and scope of such services, the cost-sharing with respect to such services, and the method for delivery of block grant health care assistance under this section, which shall be instead of the such types, amount, duration, and scope, cost-sharing, and methods of delivery for medical assistance otherwise required under this title, except that the plan must provide for assistance for—

“(i) hospital care;

“(ii) surgical care and treatment;

“(iii) medical care and treatment;

“(iv) obstetrical and prenatal care and treatment;

“(v) prescribed drugs, medicines, and prosthetic devices;

“(vi) other medical supplies and services; and

“(vii) health care for children under 18 years of age.

“(2) Review and approval—A plan described in paragraph (1) shall be deemed approved by the Secretary unless the Secretary determines, within 30 days after the date of the Secretary’s receipt of the plan, that the plan is incomplete or actuarially unsound and, with respect to such plan and its implementation under this section, the requirements of paragraphs (1), (10)(B), (17), and (23) of section 1902(a) shall not apply.

“(c) Amount of block grant funds

“(1) For initial fiscal year—The block grant amount under this subsection for a State for the initial fiscal year in the first 10-fiscal-year period is equal to an amount determined by the Secretary to equal the per capita spending on the population covered by the State plan established in subsection (b) of section 1903A.

“(2) For any subsequent fiscal year—The block grant amount under this section for a State for each succeeding fiscal year (in any 10-fiscal-year period) is equal to the block grant amount under paragraph (1) (or this paragraph) for the State for the previous fiscal year increased by the annual increase in the consumer price index for all urban consumers (all items; U.S. city average) for the fiscal year involved.

“(3) Availability of rollover funds—The block grant amount under this subsection for a State for a fiscal year shall remain available to the State for expenditures under this section for the succeeding fiscal year but only if an election is in effect under this section for the State in such succeeding fiscal year.

“(d) Federal payment and State responsibility—The Secretary shall pay to each State with an election in effect under this section for a fiscal year, from its block grant amount under subsection (c) available for such fiscal year, an amount for each quarter of such fiscal year equal to the enhanced FMAP described in the first sentence of section 2105(b) of the total amount expended under the State plan under this section during such quarter, and the State is responsible for the balance of funds to carry out such plan.

“(e) Block grant individual defined—In this section, the term block grant individual means, with respect to a State for a 10-fiscal-year period, an individual who is within an applicable block grant category for the State and such period.

“(f) Applicable block grant category defined—In this section, the term applicable block grant category means with respect to a State for a 10-fiscal-year period, either of the following as specified by the State for such period in its plan under subsection (b)(1)(A):

“(1) Elderly, blind, disabled—Both of the following categories:

“(A) Elderly—Individuals who are 65 years of age or older.

“(B) Blind and disabled—Individuals (not described in the previous subparagraph) who are eligible for medical assistance under this title on the basis of being blind or disabled.

“(2) Elderly, blind, disabled, and others—All of the following categories:

“(A) Elderly—Individuals who are 65 years of age or older.

“(B) Blind and disabled—Individuals (not described in the previous subparagraph) who are eligible for medical assistance under this title on the basis of being blind or disabled.

“(C) Children—Individuals (not described in a previous subparagraph) who are children under 19 years of age.

“(D) Expansion enrollees—Individuals (not described in a previous subparagraph) for whom the amounts expended for medical assistance are subject to an increase or change in the Federal medical assistance percentage under subsection (y) or (z)(2), respectively, of section 1905.

“(E) Other nonelderly, nondisabled, non-expansion adults—Individuals who are not described in any of the previous subparagraphs and whose income does not exceed 60 percent of the poverty line (as defined in section 2110(c)(5)) applicable to a family of the size involved.

“(g) Block grant health care assistance—In this section, the term block grant health care assistance means assistance for health-care-related items and medical services for block grant individuals within the applicable block grant category for the State and 10-fiscal-year period involved who are low-income individuals (as defined by the State).

“(h) Auditing—As a condition of receiving funds under this section, a State shall contract with an independent entity to conduct audits of its expenditures made with respect to activities funded under this section for each fiscal year for which the State elects to apply this section to ensure that such funds are used consistent with this section and shall make such audits available to the Secretary upon the request of the Secretary.”

Sec. 202 Medicaid eligibility determinations

(a)
State flexibility To use contractors To make eligibility determinations on behalf of State— Section 1902(a)(5) of the Social Security Act (42 U.S.C. 1396a(a)(5)) is amended by inserting before the semicolon at the end the following: “, but such determinations of eligibility may be made, at the option of a State, under a contract with another State or local agency or a contractor so long as the contract does not provide incentives for the agency or contractor to delay eligibility determinations or to deny eligibility for individuals otherwise eligible for medical assistance”.
(b)
Frequency of eligibility redeterminations— Section 1902(e)(14) of the Social Security Act (42 U.S.C. 1396a(e)(14)) is amended by adding at the end the following:

“(L) Frequency of eligibility redeterminations—Beginning on October 1, 2019, and notwithstanding subparagraph (H), in the case of an individual whose eligibility for medical assistance under the State plan under this title (or a waiver of such plan) is determined based on the application of modified adjusted gross income under subparagraph (A) and who is so eligible on the basis of clause (i)(VIII), (ii)(XX), or (ii)(XXIII) of subsection (a)(10)(A), at the option of the State, the State plan may provide that the individual’s eligibility shall be redetermined every 6 months (or such shorter number of months as the State may elect).”

Sec. 203 Lowering safe harbor threshold with respect to State taxes on health care providers

Section 1903(w)(4)(C)(ii) of the Social Security Act (42 U.S.C. 1396b(w)(4)(C)(ii)) is amended—
(1)
by striking “of fiscal years beginning” and inserting

“(I) beginning”

(2)
by striking “it appears.” and inserting the following:

“(II) beginning on or after January 1, 2020, and before January 1, 2030, “4 percent” shall be substituted for “6 percent” each place it appears;

“(III) beginning on or after January 1, 2030, and before January 1, 2035, “3 percent” shall be substituted for “6 percent” each place it appears;

“(IV) beginning on or after January 1, 2035, and before January 1, 2040, “2 percent” shall be substituted for “6 percent” each place it appears;

“(V) beginning on or after January 1, 2040, and before January 1, 2045, “1 percent” shall be substituted for “6 percent” each place it appears; and

“(VI) beginning on or after January 1, 2045, “0 percent” shall be substituted for “6 percent” each place it appears.”

Sec. 204 Income limitations for refundable credits for coverage under a qualified health plan

(a)
In general— Subparagraphs (A) and (B) of section 36B(c)(1) of the Internal Revenue Code of 1986 are amended by inserting after “100 percent” each place such term appears the following: “(60 percent in the case of an individual enrolled through an Exchange utilized by a State that makes the election described in section 1903A of the Social Security Act)”.
(b)
Effective date— The amendments made by this section shall apply with respect to taxable years beginning after the date of the enactment of this Act.

B Medicare

Sec. 221 Off-campus provider-based department medicare site neutral payment

(a)
In general— Section 1834 of the Social Security Act (42 U.S.C. 1395m) is amended by adding at the end the following new subsection:

“(x) Off-Campus provider-Based department site neutral payment

“(1) In general—With respect to items and services furnished in an off-campus provider-based department, payment under this section for such items and services shall be the amount determined under the fee schedule under section 1848 for such items and services furnished if furnished in a physician office setting.

“(2) Off-campus provider-based department—For purposes of this subsection, the term “off-campus provider-based department” has such meaning as specified by the Secretary.”

(b)
Effective date— The amendment made by subsection (a) shall apply with respect to items and services furnished on or after January 1, 2021.

Sec. 222 Elimination of Medicare eligibility for certain individuals

(a)
Enrollment prohibition—
(1)
Part B— Section 1836 of the Social Security Act (42 U.S.C. 1395o) is amended by striking the period at the end and inserting “, except that an individual who attains age 65 on or after January 1, 2030, and is an individual who, upon attaining such age, has earned $10,000,000 or more in lifetime wages, shall not be eligible to so enroll.”.
(2)
Part D— Section 1860D–1(a)(3)(A) of such Act (42 U.S.C. 1395w–101(a)(3)(A)) is amended by striking the period at the end and inserting “, excluding an individual who, upon attaining age 65, has earned $10,000,000 or more in lifetime wages.”.
(b)
Medigap— Section 1882 of the Social Security Act (42 U.S.C. 1395ss) is amended by adding at the end the following new subsection:

“(aa) Additional limitation on newly eligible beneficiaries

“(1) In general—Notwithstanding any other provision of this section, on or after January 1, 2030, a medicare supplemental policy may not be sold or issued to a targeted newly eligible Medicare beneficiary.

“(2) Targeted newly eligible Medicare beneficiary—For purposes of this subsection, the term “targeted newly eligible Medicare beneficiary” means an individual who, upon attaining the age of 65, has earned $10,000,000 or more in lifetime wages.”

Sec. 223 Medicare coverage of bad debt

Section 1861(v)(1) of the Social Security Act (42 U.S.C. 1395(v)(1)) is amended—
(1)
in subparagraph (T)—
(A)
in clause (iv), by striking “and” at the end;
(B)
in clause (v)—
(i)
by striking “during fiscal year” and inserting “during fiscal years”;
(ii)
by striking “or a subsequent fiscal year” and inserting “through 2020”; and
(iii)
by striking the period at the end and inserting “, and”; and
(C)
by adding at the end the following new clause:

“(vi) for cost reporting periods beginning during fiscal year 2021 or a subsequent fiscal year, by the percent applicable for cost reporting periods beginning during the previous fiscal year, increased (through fiscal year 2024) by 10 percentage points.”

(2)
in subparagraph (V)—
(A)
in clause (i)—
(i)
in subclause (III), by striking “and” at the end;
(ii)
in subclause (IV)—
(I)
by striking “during fiscal year” and inserting “during fiscal years 2015 through 2020”; and
(II)
by striking the period at the end and inserting “; and”; and
(iii)
by adding at the end the following new subclause:

“(V) for cost reporting periods beginning during fiscal year 2021 or a subsequent fiscal year, the percent applicable for cost reporting periods beginning during the previous fiscal year, increased (through fiscal year 2024) by 10 percentage points.”

(B)
in clause (ii)—
(i)
in subclause (III), by striking “and” at the end; and
(ii)
in subclause (IV)—
(I)
by striking “a subsequent fiscal year” and inserting “fiscal years 2015 through 2020”;
(II)
by striking the period at the end and inserting “; and”; and
(III)
by adding at the end the following new subclause:

“(V) for cost reporting periods beginning during fiscal year 2021 or a subsequent fiscal year, shall be reduced by the percent applicable for cost reporting periods beginning during the previous fiscal year, increased (through fiscal year 2024) by 10 percentage points.”

(3)
in subparagraph (W)(i)—
(A)
in subclause (II), by striking “and” at the end;
(B)
in subclause (III)—
(i)
by striking “during a subsequent fiscal year” and inserting “during fiscal years 2015 through 2020”; and
(ii)
by striking the period at the end and inserting “; and”; and
(C)
by adding at the end the following new subclause:

“(IV) for cost reporting periods beginning during fiscal year 2021 or a subsequent fiscal year, by the percent applicable for cost reporting periods beginning during the previous fiscal year, increased (through fiscal year 2024) by 10 percentage points.”

C Medical Malpractice Reform

Sec. 231 Encouraging speedy resolution of claims

(a)
Statute of limitations—
(1)
In general— Except as provided in paragraph (2), the time for the commencement of a health care lawsuit shall be, whichever occurs first of the following:
(A)
Three years after the date of the occurrence of the breach or tort.
(B)
Three years after the date the medical or health care treatment that is the subject of the claim is completed.
(C)
One year after the claimant discovers, or through the use of reasonable diligence should have discovered, the injury.
(2)
Tolling— In no event shall the time for commencement of a health care lawsuit exceed 3 years after the date of the occurrence of the breach or tort or 3 years after the date the medical or health care treatment that is the subject of the claim is completed (whichever occurs first) unless tolled for any of the following—
(A)
upon proof of fraud;
(B)
intentional concealment; or
(C)
the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.
(3)
Actions by a minor— Actions by a minor shall be commenced within 3 years after the date of the occurrence of the breach or tort or 3 years after the date of the medical or health care treatment that is the subject of the claim is completed (whichever occurs first) except that actions by a minor under the full age of 6 years shall be commenced within 3 years after the date of the occurrence of the breach or tort, 3 years after the date of the medical or health care treatment that is the subject of the claim is completed, or 1 year after the injury is discovered, or through the use of reasonable diligence should have been discovered, or prior to the minor’s 8th birthday, 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 have committed fraud or collusion in the failure to bring an action on behalf of the injured minor.
(b)
State flexibility— No provision of subsection (a) shall be construed to preempt any State law (whether effective before, on, or after the date of the enactment of this Act) that—
(1)
specifies a time period of less than 3 years after the date of injury or less than 1 year after the claimant discovers, or through the use of reasonable diligence should have discovered, the injury, for the filing of a health care lawsuit;
(2)
that specifies a different time period for the filing of lawsuits by a minor;
(3)
that triggers the time period based on the date of the alleged negligence; or
(4)
establishes a statute of repose for the filing of a health care lawsuit.

Sec. 232 Compensating patient injury

(a)
Unlimited amount of damages for actual economic losses in health care lawsuits— In any health care lawsuit, nothing in this Act shall limit a claimant’s recovery of the full amount of the available economic damages, notwithstanding the limitation in subsection (b).
(b)
Additional noneconomic damages— In any health care lawsuit, the amount of noneconomic damages, if available, shall not exceed $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 injury.
(c)
No discount of award for noneconomic damages— For purposes of applying the limitation in subsection (b), future noneconomic damages shall not be discounted to present value. The jury shall not be informed about the maximum award for noneconomic damages. An award for noneconomic damages in excess of $250,000 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. If separate awards are rendered for past and future noneconomic damages and the combined awards exceed $250,000, 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. Whenever a judgment of liability is rendered as to any party, 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.
(e)
State flexibility— No provision of this section shall be construed to preempt any State law (whether effective before, on, or after the date of the enactment of this Act) that specifies a particular monetary amount of economic or noneconomic 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 section.

Sec. 233 Maximizing patient recovery

(a)
Court supervision of share of damages actually paid to claimants— 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. In particular, 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. In no event shall the total of all contingent fees for representing all claimants in a health care lawsuit exceed the following limits:
(1)
Forty percent of the first $50,000 recovered by the claimant(s).
(2)
Thirty-three and one-third percent of the next $50,000 recovered by the claimant(s).
(3)
Twenty-five percent of the next $500,000 recovered by the claimant(s).
(4)
Fifteen percent of any amount by which the recovery by the claimant(s) is in excess of $600,000.
(b)
Applicability— The limitations in this section shall apply whether the recovery is by judgment, settlement, mediation, arbitration, or any other form of alternative dispute resolution. 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. The requirement for court supervision in the first two sentences of subsection (a) applies only in civil actions.
(c)
State flexibility— No provision of this section shall be construed to preempt any State law (whether effective before, on, or after the date of the enactment of this Act) that specifies a lesser percentage or lesser total value of damages which may be claimed by an attorney representing a claimant in a health care lawsuit.

Sec. 234 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 Act.
(c)
State Flexibility— No provision of this section shall be construed to preempt any State law (whether effective before, on, or after the date of the enactment of this Act) that specifies periodic payments for future damages at any amount other than $50,000 or that mandates such payments absent the request of either party.

Sec. 235 Product liability for health care providers

A health care provider who prescribes, or who dispenses pursuant to a prescription, a medical product approved, licensed, or cleared by the Food and Drug Administration shall not be named as a party to a product liability lawsuit involving such product and shall not be liable to a claimant in a class action lawsuit against the manufacturer, distributor, or seller of such product.

Sec. 236 Definitions

In this Act:
(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)
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.
(5)
Economic damages— The term “economic damages” means objectively verifiable monetary losses incurred as a result of the provision or use of (or failure to provide or use) 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, unless otherwise defined under applicable State law. In no circumstances shall damages for health care services or medical products exceed the amount actually paid or incurred by or on behalf of the claimant.
(6)
Future damages— The term “future damages” means any damages that are incurred after the date of judgment, settlement, or other resolution (including mediation, or any other form of alternative dispute resolution).
(7)
Health care lawsuit— The term “health care lawsuit” means any health care liability claim concerning the provision of goods or services for which coverage was provided in whole or in part via a Federal program, subsidy or tax benefit, or any health care liability action concerning the provision of goods or services for which coverage was provided in whole or in part via a Federal program, subsidy or tax benefit, brought in a State or Federal court or pursuant to an alternative dispute resolution system, against a health care provider 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, State, or local government; or which is grounded in antitrust.
(8)
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 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.
(9)
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, including, but not limited to, third-party claims, cross-claims, counter-claims, or contribution claims, which are based upon the provision or use of (or the failure to provide or use) health care services or medical products, 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.
(10)
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, as well as any other individual or entity defined as a health care provider, health care professional, or health care institution under State law.
(11)
Health care services— The term “health care services” means the provision of any goods or services (including safety, professional, or administrative services directly related to health care) 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.
(12)
Medical product— The term “medical product” means a drug, device, or biological product intended for humans, and the terms “drug”, “device”, and “biological product” 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(g)(1) and (h)) and section 351(a) of the Public Health Service Act (42 U.S.C. 262(a)), respectively, including any component or raw material used therein, but excluding health care services.
(13)
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 incurred as a result of the provision or use of (or failure to provide or use) health care services or medical products, unless otherwise defined under applicable State law.
(14)
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.
(15)
Representative— The term “representative” means a legal guardian, attorney, person designated to make decisions on behalf of a patient under a medical power of attorney, or any person recognized in law or custom as a patient’s agent.
(16)
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. 237 Effect on other laws

(a)
Vaccine injury—
(1)
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 Act does not affect the application of the rule of law to such an action; and
(B)
any rule of law prescribed by this subtitle in conflict with a rule of law of such title XXI shall not apply to such action.
(2)
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 subtitle or otherwise applicable law (as determined under this subtitle) will apply to such aspect of such action.
(b)
Other Federal law— Except as provided in this section, nothing in this subtitle shall be deemed to affect any defense available to a defendant in a health care lawsuit or action under any other provision of Federal law.

Sec. 238 Rules of construction

(a)
Health care lawsuits— Unless otherwise specified in this subtitle, the provisions governing health care lawsuits set forth in this subtitle 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 subtitle. The provisions governing health care lawsuits set forth in this subtitle 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 subtitle; or
(2)
prohibits the introduction of evidence regarding collateral source benefits, or mandates or permits subrogation or a lien on collateral source benefits.
(b)
Protection of States’ rights and other laws— Any issue that is not governed by any provision of law established by or under this subtitle (including State standards of negligence) shall be governed by otherwise applicable State or Federal law.
(c)
State Flexibility— No provision of this subtitle shall be construed to preempt any defense available to a party in a health care lawsuit under any other provision of State or Federal law.

Sec. 239 Effective date

This subtitle 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 subtitle, except that any health care lawsuit arising from an injury occurring prior to the date of the enactment of this subtitle shall be governed by the applicable statute of limitations provisions in effect at the time the cause of action accrued.

Sec. 240 Limitation on expert witness testimony

(a)
In general— No person in a health care profession requiring licensure under the laws of a State shall be competent to testify in any court of law to establish the following facts—
(1)
the recognized standard of acceptable professional practice and the specialty thereof, if any, that the defendant practices, which shall be the type of acceptable professional practice recognized in the defendant’s community or in a community similar to the defendant’s community that was in place at the time the alleged injury or wrongful action occurred;
(2)
that the defendant acted with less than or failed to act with ordinary and reasonable care in accordance with the recognized standard; and
(3)
that as a proximate result of the defendant’s negligent act or omission, the claimant suffered injuries which would not otherwise have occurred,
(b)
Applicability— The requirements set forth in subsection (a) shall also apply to expert witnesses testifying for the defendant as rebuttal witnesses.
(c)
Waiver authority— The court may waive the requirements in this subsection if it determines that the appropriate witnesses otherwise would not be available.

Sec. 241 Communications following unanticipated outcome

(a)
Provider communications— In any health care liability action, any and all statements, affirmations, gestures, or conduct expressing apology, fault, sympathy, commiseration, condolence, compassion, or a general sense of benevolence which are made by a health care provider or an employee of a health care provider to the patient, a relative of the patient, or a representative of the patient and which relate to the discomfort, pain, suffering, injury, or death of the patient as the result of the unanticipated outcome of medical care shall be inadmissible for any purpose as evidence of an admission of liability or as evidence of an admission against interest.
(b)
State flexibility— No provision of this section shall be construed to preempt any State law (whether effective before, on, or after the date of the enactment of this Act) that makes additional communications inadmissible as evidence of an admission of liability or as evidence of an admission against interest.

Sec. 242 Expert witness qualifications

(a)
In general— In any health care lawsuit, an individual shall not give expert testimony on the appropriate standard of practice or care involved unless the individual is licensed as a health professional in one or more States and the individual meets the following criteria:
(1)
If the party against whom or on whose behalf the testimony is to be offered is or claims to be a specialist, the expert witness shall specialize at the time of the occurrence that is the basis for the lawsuit in the same specialty or claimed specialty as the party against whom or on whose behalf the testimony is to be offered. If the party against whom or on whose behalf the testimony is to be offered is or claims to be a specialist who is board certified, the expert witness shall be a specialist who is board certified in that specialty or claimed specialty.
(2)
During the 1-year period immediately preceding the occurrence of the action that gave rise to the lawsuit, the expert witness shall have devoted a majority of the individual’s professional time to one or more of the following:
(A)
The active clinical practice of the same health profession as the defendant and, if the defendant is or claims to be a specialist, in the same specialty or claimed specialty.
(B)
The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession as the defendant and, if the defendant is or claims to be a specialist, in an accredited health professional school or accredited residency or clinical research program in the same specialty or claimed specialty.
(3)
If the defendant is a general practitioner, the expert witness shall have devoted a majority of the witness’s professional time in the 1-year period preceding the occurrence of the action giving rise to the lawsuit to one or more of the following:
(A)
Active clinical practice as a general practitioner.
(B)
Instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession as the defendant.
(b)
Lawsuits against entities— If the defendant in a health care lawsuit is an entity that employs a person against whom or on whose behalf the testimony is offered, the provisions of subsection (a) apply as if the person were the party or defendant against whom or on whose behalf the testimony is offered.
(c)
Power of court— Nothing in this subsection shall limit the power of the trial court in a health care lawsuit to disqualify an expert witness on grounds other than the qualifications set forth under this subsection.
(d)
Limitation— An expert witness in a health care lawsuit shall not be permitted to testify if the fee of the witness is in any way contingent on the outcome of the lawsuit.
(e)
State flexibility— No provision of this section shall be construed to preempt any State law (whether effective before, on, or after the date of the enactment of this Act) that places additional qualification requirements upon any individual testifying as an expert witness.

Sec. 243 Affidavit of merit

(a)
Required filing— Subject to subsection (b), the plaintiff in a health care lawsuit alleging negligence or, if the plaintiff is represented by an attorney, the plaintiff’s attorney shall file simultaneously with the health care lawsuit an affidavit of merit signed by a health professional who meets the requirements for an expert witness under section 242 of this Act. The affidavit of merit shall certify that the health professional has reviewed the notice and all medical records supplied to him or her by the plaintiff’s attorney concerning the allegations contained in the notice and shall contain a statement of each of the following:
(1)
The applicable standard of practice or care.
(2)
The health professional’s opinion that the applicable standard of practice or care was breached by the health professional or health facility receiving the notice.
(3)
The actions that should have been taken or omitted by the health professional or health facility in order to have complied with the applicable standard of practice or care.
(4)
The manner in which the breach of the standard of practice or care was the proximate cause of the injury alleged in the notice.
(5)
A listing of the medical records reviewed.
(b)
Filing extension— Upon motion of a party for good cause shown, the court in which the complaint is filed may grant the plaintiff or, if the plaintiff is represented by an attorney, the plaintiff’s attorney an additional 28 days in which to file the affidavit required under subsection (a).
(c)
State flexibility— No provision of this section shall be construed to preempt any State law (whether effective before, on, or after the date of the enactment of this Act) that establishes additional requirements for the filing of an affidavit of merit or similar pre-litigation documentation.

Sec. 244 Notice of intent to commence lawsuit

(a)
Advance notice— A person shall not commence a health care lawsuit against a health care provider unless the person has given the health care provider 90 days written notice before the action is commenced.
(b)
Exceptions— A health care lawsuit against a health care provider filed within 6 months of the statute of limitations expiring as to any claimant, or within 1 year of the statute of repose expiring as to any claimant, shall be exempt from compliance with this section.
(c)
State flexibility— No provision of this section shall be construed to preempt any State law (whether effective before, on, or after the date of the enactment of this Act) that establishes a different time period for the filing of written notice.