H2098B3231A05967 RLE:JSL 02/28/08 #90 A05967
AMENDMENTS TO HOUSE BILL NO. 2098
Sponsor: REPRESENTATIVE BOYD
Printer's No. 3231
1 Amend Title, page 1, lines 1 through 7, by striking out all
2 of said lines and inserting
3 Amending the act of May 17, 1921 (P.L.682, No.284), entitled "An
4 act relating to insurance; amending, revising, and
5 consolidating the law providing for the incorporation of
6 insurance companies, and the regulation, supervision, and
7 protection of home and foreign insurance companies, Lloyds
8 associations, reciprocal and inter-insurance exchanges, and
9 fire insurance rating bureaus, and the regulation and
10 supervision of insurance carried by such companies,
11 associations, and exchanges, including insurance carried by
12 the State Workmen's Insurance Fund; providing penalties; and
13 repealing existing laws," transferring the Medical Care
14 Availability and Reduction of Error (Mcare) Act; establishing
15 a system for payment or reduction in payment for preventable
16 serious adverse events within Commonwealth programs;
17 informing health insurers of payment policies used by
18 Medicaid and Medicare; and providing for the powers and
19 duties of the Department of Public Welfare, the Insurance
20 Department, the Department of Health and the Department of
21 State.
22 Amend Bill, page 1, lines 10 through 19; pages 2 through 4,
23 lines 1 through 30; page 5, lines 1 through 9, by striking out
24 all of said lines on said pages and inserting
25 Section 1. The title of the act of May 17, 1921 (P.L.682,
26 No.284), known as The Insurance Company Law of 1921, is amended
27 to read:
28 AN ACT
29 Relating to insurance; amending, revising, and consolidating the
30 law providing for the incorporation of insurance companies,
31 and the regulation, supervision, and protection of home and
32 foreign insurance companies, Lloyds associations, reciprocal
33 and inter-insurance exchanges, and fire insurance rating
34 bureaus, and the regulation and supervision of insurance
35 carried by such companies, associations, and exchanges,
36 including insurance carried by the State Workmen's Insurance
37 Fund; providing penalties; providing for medical care
38 availability and reduction of errors; and repealing existing
1 laws.
2 Section 1.1. The act is amended by adding articles to read:
3 ARTICLE XXII
4 HEALTH CARE COST
5 SUBARTICLE A
6 MEDICAL CARE AVAILABILITY AND REDUCTION OF ERROR
7 CHAPTER 1
8 PRELIMINARY PROVISIONS
9 Section 2201. Scope of subarticle.
10 This subarticle relates to medical care availability and
11 reduction of error.
12 Section 2202. Declaration of policy.
13 The General Assembly finds and declares as follows:
14 (1) It is the purpose of this subarticle to ensure that
15 medical care is available in this Commonwealth through a
16 comprehensive and high-quality health care system.
17 (2) Access to a full spectrum of hospital services and
18 to highly trained physicians in all specialties must be
19 available across this Commonwealth.
20 (3) To maintain this system, medical professional
21 liability insurance has to be obtainable at an affordable and
22 reasonable cost in every geographic region of this
23 Commonwealth.
24 (4) A person who has sustained injury or death as a
25 result of medical negligence by a health care provider must
26 be afforded a prompt determination and fair compensation.
27 (5) Every effort must be made to reduce and eliminate
28 medical errors by identifying problems and implementing
29 solutions that promote patient safety.
30 (6) Recognition and furtherance of all of these elements
31 is essential to the public health, safety and welfare of all
32 the citizens of Pennsylvania.
33 Section 2203. Definitions.
34 The following words and phrases when used in this subarticle
35 shall have the meanings given to them in this section unless the
36 context clearly indicates otherwise:
37 "Birth center." An entity licensed as a birth center under
38 the act of July 19, 1979 (P.L.130, No.48), known as the Health
39 Care Facilities Act.
40 "Claimant." A patient, including a patient's immediate
41 family, guardian, personal representative or estate.
42 "Commissioner." The Insurance Commissioner of the
43 Commonwealth.
44 "Guardian." A fiduciary who has the care and management of
45 the estate or person of a minor or an incapacitated person.
46 "Health care provider." A primary health care center or a
47 person, including a corporation, university or other educational
48 institution licensed or approved by the Commonwealth to provide
49 health care or professional medical services as a physician, a
50 certified nurse midwife, a podiatrist, hospital, nursing home,
51 birth center and, except as to section 2252(a), an officer,
52 employee or agent of any of them acting in the course and scope
53 of employment.
54 "Hospital." An entity licensed as a hospital under the act
55 of June 13, 1967 (P.L.31, No.21), known as the Public Welfare
56 Code, or the act of July 19, 1979 (P.L.130, No.48), known as the
57 Health Care Facilities Act.
58 "Immediate family." A parent, a spouse, a child or an adult
59 sibling residing in the same household.
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1 "Medical professional liability action." Any proceeding in
2 which a medical professional liability claim is asserted,
3 including an action in a court of law or an arbitration
4 proceeding.
5 "Medical professional liability claim." Any claim seeking
6 the recovery of damages or loss from a health care provider
7 arising out of any tort or breach of contract causing injury or
8 death resulting from the furnishing of health care services
9 which were or should have been provided.
10 "Nursing home." An entity licensed as a nursing home under
11 the act of July 19, 1979 (P.L.130, No.48), known as the Health
12 Care Facilities Act.
13 "Patient." A natural person who receives or should have
14 received health care from a health care provider.
15 "Personal representative." An executor or administrator of a
16 patient's estate.
17 "Primary health center." A community-based nonprofit
18 corporation meeting standards prescribed by the Department of
19 Health which provides preventive, diagnostic, therapeutic and
20 basic emergency health care by licensed practitioners who are
21 employees of the corporation or under contract to the
22 corporation.
23 Section 2204. Liability of nonqualifying health care providers.
24 Any person rendering services normally rendered by a health
25 care provider who fails to qualify as a health care provider
26 under this subarticle is subject to liability under the law
27 without regard to the provisions of this subarticle.
28 Section 2205. Provider not a warrantor or guarantor.
29 In the absence of a special contract in writing, a health
30 care provider is neither a warrantor nor a guarantor of a cure.
31 CHAPTER 3
32 PATIENT SAFETY
33 Section 2211. Scope of chapter.
34 This chapter relates to the reduction of medical errors for
35 the purpose of ensuring patient safety.
36 Section 2212. Definitions.
37 The following words and phrases when used in this chapter
38 shall have the meanings given to them in this section unless the
39 context clearly indicates otherwise:
40 "Abortion facility." A facility or medical facility as
41 defined in 18 Pa.C.S. § 3203 (relating to definitions) which is
42 subject to this chapter pursuant to section 2219.6(b) or (c) and
43 which is not subject to licensure under the act of July 19, 1979
44 (P.L.130, No.48), known as the Health Care Facilities Act.
45 "Ambulatory surgical facility." An entity defined as an
46 ambulatory surgical facility under the act of July 19, 1979
47 (P.L.130, No.48), known as the Health Care Facilities Act.
48 "Authority." The Patient Safety Authority established in
49 section 2213.
50 "Board." The board of directors of the Patient Safety
51 Authority.
52 "Department." The Department of Health of the Commonwealth.
53 "Fund." The Patient Safety Trust Fund established in section
54 2215.
55 "Health care worker." An employee, independent contractor,
56 licensee or other individual authorized to provide services in a
57 medical facility.
58 "Incident." An event, occurrence or situation involving the
59 clinical care of a patient in a medical facility which could
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1 have injured the patient but did not either cause an
2 unanticipated injury or require the delivery of additional
3 health care services to the patient. The term does not include a
4 serious event.
5 "Infrastructure." Structures related to the physical plant
6 and service delivery systems necessary for the provision of
7 health care services in a medical facility.
8 "Infrastructure failure." An undesirable or unintended
9 event, occurrence or situation involving the infrastructure of a
10 medical facility or the discontinuation or significant
11 disruption of a service which could seriously compromise patient
12 safety.
13 "Licensee." An individual who is all of the following:
14 (1) Licensed or certified by the department or the
15 Department of State to provide professional services in this
16 Commonwealth.
17 (2) Employed by or authorized to provide professional
18 services in a medical facility.
19 "Medical facility." An ambulatory surgical facility, birth
20 center, hospital or abortion facility.
21 "Patient safety officer." An individual designated by a
22 medical facility under section 2219.
23 "Serious event." An event, occurrence or situation involving
24 the clinical care of a patient in a medical facility that
25 results in death or compromises patient safety and results in an
26 unanticipated injury requiring the delivery of additional health
27 care services to the patient. The term does not include an
28 incident.
29 Section 2213. Establishment of Patient Safety Authority.
30 (a) Establishment.--There is established a body corporate
31 and politic to be known as the Patient Safety Authority, which
32 shall be an independent agency. The powers and duties of the
33 authority shall be vested in and exercised by a board of
34 directors, which shall have the sole power under section 2214(a)
35 to employ staff, including an executive director, legal counsel,
36 consultants or any other staff deemed necessary by the
37 authority. Individuals employed by the authority as staff shall
38 be deemed employees of the Commonwealth for the purpose of
39 participation in the Pennsylvania Employee Benefit Trust Fund.
40 (b) Composition.--The board of the authority shall consist
41 of 11 members composed and appointed in accordance with the
42 following:
43 (1) The Physician General or a physician appointed by
44 the Governor if there is no appointed Physician General.
45 (2) Four residents of this Commonwealth, one of whom
46 shall be appointed by the President pro tempore of the
47 Senate, one of whom shall be appointed by the Minority Leader
48 of the Senate, one of whom shall be appointed by the Speaker
49 of the House of Representatives and one of whom shall be
50 appointed by the Minority Leader of the House of
51 Representatives, who shall serve terms coterminous with their
52 respective appointing authorities.
53 (3) A health care worker residing in this Commonwealth
54 who is a physician and is appointed by the Governor, who
55 shall serve an initial term of three years.
56 (4) A health care worker residing in this Commonwealth
57 who is licensed by the Department of State as a nurse and is
58 appointed by the Governor, who shall serve an initial term of
59 three years.
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1 (5) A health care worker residing in this Commonwealth
2 who is licensed by the Department of State as a pharmacist
3 and is appointed by the Governor, who shall serve an initial
4 term of two years.
5 (6) A health care worker residing in this Commonwealth
6 who is employed by a hospital and is appointed by the
7 Governor, who shall serve an initial term of two years.
8 (7) Two residents of this Commonwealth, one of whom is a
9 health care worker and one of whom is not a health care
10 worker, appointed by the Governor, who shall each serve a
11 term of four years.
12 (c) Terms.--With the exception of paragraphs (1) and (2),
13 members of the board shall serve for terms of four years after
14 completion of the initial terms designated in subsection (b) and
15 shall not be eligible to serve more than two full consecutive
16 terms.
17 (d) Quorum.--A majority of the members of the board shall
18 constitute a quorum. Notwithstanding any other provision of law,
19 action may be taken by the board at a meeting upon a vote of the
20 majority of its members present in person or through the use of
21 amplified telephonic equipment if authorized by the bylaws of
22 the board.
23 (e) Meetings.--The board shall meet at the call of the
24 chairperson or as may be provided in the bylaws of the board.
25 The board shall hold meetings at least quarterly, which shall be
26 subject to the requirements of 65 Pa.C.S. Ch. 7 (relating to
27 open meetings). Meetings of the board may be held anywhere
28 within this Commonwealth.
29 (f) Chairperson.--The chairperson shall be the person
30 appointed under subsection (b)(1).
31 (g) Formation.--The authority shall be formed by July 22,
32 2002.
33 (h) Sole public entity.--For purposes of section 924 of the
34 Public Health Service Act (58 Stat. 682, 42 U.S.C. § 299b-24),
35 the authority is the sole public entity eligible to be certified
36 as a patient safety organization as defined in section 921(4) of
37 the Public Health Service Act (42 U.S.C. § 299b-21(4)) when
38 conducting patient safety activities, as defined in section
39 921(5) of the Public Health Service Act (42 U.S.C. § 299b-
40 21(5)), which fall within the scope of the authority's
41 responsibilities.
42 Section 2214. Powers and duties.
43 (a) General rule.--The authority shall do all of the
44 following:
45 (1) Adopt bylaws necessary to carry out the provisions
46 of this chapter.
47 (2) Employ staff as necessary to implement this chapter.
48 (3) Make, execute and deliver contracts and other
49 instruments.
50 (4) Apply for, solicit, receive, establish priorities
51 for, allocate, disburse, contract for, administer and spend
52 funds in the fund and other funds that are made available to
53 the authority from any source consistent with the purposes of
54 this chapter.
55 (5) Contract with a for-profit or registered nonprofit
56 entity or entities, other than a health care provider, to do
57 the following:
58 (i) Collect, analyze and evaluate data regarding
59 reports of serious events and incidents, including the
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1 identification of performance indicators and patterns in
2 frequency or severity at certain medical facilities or in
3 certain regions of this Commonwealth.
4 (ii) Transmit to the authority recommendations for
5 changes in health care practices and procedures which may
6 be instituted for the purpose of reducing the number and
7 severity of serious events and incidents.
8 (iii) Directly advise reporting medical facilities
9 of immediate changes that can be instituted to reduce
10 serious events and incidents.
11 (iv) Conduct reviews in accordance with subsection
12 (b).
13 (6) Receive and evaluate recommendations made by the
14 entity or entities contracted with in accordance with
15 paragraph (5) and report those recommendations to the
16 department, which shall have no more than 30 days to approve
17 or disapprove the recommendations.
18 (7) After consultation and approval by the department,
19 issue recommendations to medical facilities on a facility-
20 specific or on a Statewide basis regarding changes, trends
21 and improvements in health care practices and procedures for
22 the purpose of reducing the number and severity of serious
23 events and incidents. Prior to issuing recommendations,
24 consideration shall be given to the following factors that
25 include expectation of improved quality care, implementation
26 feasibility, other relevant implementation practices and the
27 cost impact to patients, payors and medical facilities.
28 Statewide recommendations shall be issued to medical
29 facilities on a continuing basis and shall be published and
30 posted on the department's and the authority's publicly
31 accessible World Wide Web site.
32 (8) Meet with the department for purposes of
33 implementing this chapter.
34 (b) Anonymous reports to the authority.--A health care
35 worker who has complied with section 2218(a) may file an
36 anonymous report regarding a serious event with the authority.
37 Upon receipt of the report, the authority shall give notice to
38 the affected medical facility that a report has been filed. The
39 authority shall conduct its own review of the report unless the
40 medical facility has already commenced an investigation of the
41 serious event. The medical facility shall provide the authority
42 with the results of its investigation no later than 30 days
43 after receiving notice pursuant to this subsection. If the
44 authority is dissatisfied with the adequacy of the investigation
45 conducted by the medical facility, the authority shall perform
46 its own review of the serious event and may refer a medical
47 facility and any involved licensee to the department for failure
48 to report pursuant to section 2219.4(e) and (f).
49 (c) Annual report to General Assembly.--
50 (1) The authority shall report no later than May 1,
51 2003, and annually thereafter to the department and the
52 General Assembly on the authority's activities in the
53 preceding year. The report shall include:
54 (i) A schedule of the year's meetings.
55 (ii) A list of contracts entered into pursuant to
56 this section, including the amounts awarded to each
57 contractor.
58 (iii) A summary of the fund receipts and
59 expenditures, including a financial statement and balance
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1 sheet.
2 (iv) The number of serious events and incidents
3 reported by medical facilities on a geographical basis.
4 (v) The information derived from the data collected,
5 including any recognized trends concerning patient
6 safety.
7 (vi) The number of anonymous reports filed and
8 reviews conducted by the authority.
9 (vii) The number of referrals to licensure boards
10 for failure to report under this chapter.
11 (viii) Recommendations for statutory or regulatory
12 changes which may help improve patient safety in the
13 Commonwealth.
14 (2) The report shall be distributed to the Secretary of
15 Health, the chair and minority chair of the Public Health and
16 Welfare Committee of the Senate and the chair and minority
17 chair of the Health and Human Services Committee of the House
18 of Representatives.
19 (3) The annual report shall be made available for public
20 inspection and shall be posted on the authority's publicly
21 accessible World Wide Web site.
22 Section 2215. Patient Safety Trust Fund.
23 (a) Establishment.--There is hereby established a separate
24 account in the State Treasury to be known as the Patient Safety
25 Trust Fund. The fund shall be administered by the authority. All
26 interest earned from the investment or deposit of moneys
27 accumulated in the fund shall be deposited in the fund for the
28 same use.
29 (b) Funds.--All moneys deposited into the fund shall be held
30 in trust and shall not be considered general revenue of the
31 Commonwealth but shall be used only to effectuate the purposes
32 of this chapter as determined by the authority.
33 (c) Payment.--Commencing July 1, 2002, each licensed medical
34 facility shall pay the department a surcharge on its licensing
35 fee, and each abortion facility not subject to State licensure
36 shall pay an assessment as necessary to provide sufficient
37 revenues to operate the authority. When determining the
38 assessment for an abortion facility, the department shall apply
39 the same methodology utilized for an ambulatory surgical
40 facility. The total payment for all medical facilities shall not
41 exceed $5,000,000. The department shall transfer the total
42 payments to the fund within 30 days of receipt.
43 (d) Base amount.--For each succeeding calendar year, the
44 department shall determine each medical facility's proportionate
45 share of the authority's budget. The total amount shall not
46 exceed $5,000,000 in fiscal year 2002-2003 and shall be
47 increased according to the Consumer Price Index in each
48 succeeding fiscal year.
49 (e) Expenditures.--Moneys in the fund shall be expended by
50 the authority to implement this chapter.
51 (f) Dissolution.--In the event that the fund is discontinued
52 or the authority is dissolved by operation of law, any balance
53 remaining in the fund, after deducting administrative costs of
54 liquidation, shall be returned to the medical facilities in
55 proportion to their financial contributions to the fund.
56 (g) Failure to make payment.--If, after 30 days' notice, a
57 medical facility fails to pay a surcharge or assessment levied
58 by the department under this chapter, the department may impose
59 an administrative penalty of $1,000 per day until the surcharge
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1 is paid.
2 Section 2216. Department responsibilities.
3 (a) General rule.--The department shall do all of the
4 following:
5 (1) Review and approve patient safety plans in
6 accordance with section 2217.
7 (2) Receive reports of serious events and infrastructure
8 failures under section 2219.4.
9 (3) Investigate serious events and infrastructure
10 failures.
11 (4) In conjunction with the authority, analyze and
12 evaluate existing health care procedures and approve
13 recommendations issued by the authority pursuant to section
14 2214(a)(6) and (7).
15 (5) Meet with the authority for purposes of implementing
16 this chapter.
17 (b) Department consideration.--The recommendations made to
18 medical facilities pursuant to subsection (a)(4) may be
19 considered by the department for licensure purposes under the
20 act of July 19, 1979 (P.L.130, No.48), known as the Health Care
21 Facilities Act, and, in the case of abortion facilities, for
22 approval or revocation purposes pursuant to 28 Pa. Code § 29.43
23 (relating to facility approval), but shall not be considered
24 mandatory unless adopted by the department as regulations
25 pursuant to the act of June 25, 1982 (P.L.633, No.181), known as
26 the Regulatory Review Act.
27 Section 2217. Patient safety plans.
28 (a) Development and compliance.--A medical facility shall
29 develop, implement and comply with an internal patient safety
30 plan that shall be established for the purpose of improving the
31 health and safety of patients. The plan shall be developed in
32 consultation with the licensees providing health care services
33 in the medical facility.
34 (b) Requirements.--A patient safety plan shall:
35 (1) Designate a patient safety officer as set forth in
36 section 2219.
37 (2) Establish a patient safety committee as set forth in
38 section 2219.1.
39 (3) Establish a system for the health care workers of a
40 medical facility to report serious events and incidents which
41 shall be accessible 24 hours a day, seven days a week.
42 (4) Prohibit any retaliatory action against a health
43 care worker for reporting a serious event or incident in
44 accordance with the act of December 12, 1986 (P.L.1559,
45 No.169), known as the Whistleblower Law.
46 (5) Provide for written notification to patients in
47 accordance with section 2218(b).
48 (c) Approval.--By July 22, 2002, a medical facility shall
49 submit its patient safety plan to the department for approval
50 consistent with the requirements of this section. Unless the
51 department approves or rejects the plan within 60 days of
52 receipt, the plan shall be deemed approved.
53 (d) Employee notification.--Upon approval of the patient
54 safety plan, a medical facility shall notify all health care
55 workers of the medical facility of the patient safety plan.
56 Compliance with the patient safety plan shall be required as a
57 condition of employment or credentialing at the medical
58 facility.
59 Section 2218. Reporting and notification.
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1 (a) Reporting.--A health care worker who reasonably believes
2 that a serious event or incident has occurred shall report the
3 serious event or incident according to the patient safety plan
4 of the medical facility unless the health care worker knows that
5 a report has already been made. The report shall be made
6 immediately or as soon thereafter as reasonably practicable, but
7 in no event later than 24 hours after the occurrence or
8 discovery of a serious event or incident.
9 (b) Duty to notify patient.--A medical facility through an
10 appropriate designee shall provide written notification to a
11 patient affected by a serious event or, with the consent of the
12 patient, to an available family member or designee within seven
13 days of the occurrence or discovery of a serious event. If the
14 patient is unable to give consent, the notification shall be
15 given to an adult member of the immediate family. If an adult
16 member of the immediate family cannot be identified or located,
17 notification shall be given to the closest adult family member.
18 For unemancipated patients who are under 18 years of age, the
19 parent or guardian shall be notified in accordance with this
20 subsection. The notification requirements of this subsection
21 shall not be subject to the provisions of section 2219.2(a).
22 Notification under this subsection shall not constitute an
23 acknowledgment or admission of liability.
24 (c) Liability.--A health care worker who reports the
25 occurrence of a serious event or incident in accordance with
26 subsection (a) or (b) shall not be subject to any retaliatory
27 action for reporting the serious event or incident and shall
28 have the protections and remedies set forth in the act of
29 December 12, 1986 (P.L.1559, No.169), known as the Whistleblower
30 Law.
31 (d) Limitation.--Nothing in this section shall limit a
32 medical facility's ability to take appropriate disciplinary
33 action against a health care worker for failure to meet defined
34 performance expectations or to take corrective action against a
35 licensee for unprofessional conduct, including making false
36 reports or failure to report serious events under this chapter.
37 Section 2219. Patient safety officer.
38 A patient safety officer of a medical facility shall do all
39 of the following:
40 (1) Serve on the patient safety committee.
41 (2) Ensure the investigation of all reports of serious
42 events and incidents.
43 (3) Take such action as is immediately necessary to
44 ensure patient safety as a result of any investigation.
45 (4) Report to the patient safety committee regarding any
46 action taken to promote patient safety as a result of
47 investigations commenced pursuant to this section.
48 Section 2219.1. Patient safety committee.
49 (a) Composition.--
50 (1) A hospital's patient safety committee shall be
51 composed of the medical facility's patient safety officer and
52 at least three health care workers of the medical facility
53 and two residents of the community served by the medical
54 facility who are not agents, employees or contractors of the
55 medical facility. No more than one member of the patient
56 safety committee shall be a member of the medical facility's
57 board of trustees. The committee shall include members of the
58 medical facility's medical and nursing staff. The committee
59 shall meet at least monthly.
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1 (2) An ambulatory surgical facility's, abortion
2 facility's or birth center's patient safety committee shall
3 be composed of the medical facility's patient safety officer
4 and at least one health care worker of the medical facility
5 and one resident of the community served by the ambulatory
6 surgical facility, abortion facility or birth center who is
7 not an agent, employee or contractor of the ambulatory
8 surgical facility, abortion facility or birth center. No more
9 than one member of the patient safety committee shall be a
10 member of the medical facility's board of governance. The
11 committee shall include members of the medical facility's
12 medical and nursing staff. The committee shall meet at least
13 quarterly.
14 (b) Responsibilities.--A patient safety committee of a
15 medical facility shall do all of the following:
16 (1) Receive reports from the patient safety officer
17 pursuant to section 2219.
18 (2) Evaluate investigations and actions of the patient
19 safety officer on all reports.
20 (3) Review and evaluate the quality of patient safety
21 measures utilized by the medical facility. A review shall
22 include the consideration of reports made under sections
23 2214(a)(5) and (b), 2217(b)(3) and 2218(a).
24 (4) Make recommendations to eliminate future serious
25 events and incidents.
26 (5) Report to the administrative officer and governing
27 body of the medical facility on a quarterly basis regarding
28 the number of serious events and incidents and its
29 recommendations to eliminate future serious events and
30 incidents.
31 Section 2219.2. Confidentiality and compliance.
32 (a) Prepared materials.--Any documents, materials or
33 information solely prepared or created for the purpose of
34 compliance with section 2219.1(b) or of reporting under section
35 2214(a)(5) or (b), 2216(a)(2) or (3), 2217(b)(3), 2218(a),
36 2219(4), 2219.1(b)(5) or 2219.4 which arise out of matters
37 reviewed by the patient safety committee pursuant to section
38 2219.1(b) or the governing board of a medical facility pursuant
39 to section 2219.1(b) are confidential and shall not be
40 discoverable or admissible as evidence in any civil or
41 administrative action or proceeding. Any documents, materials,
42 records or information that would otherwise be available from
43 original sources shall not be construed as immune from discovery
44 or use in any civil or administrative action or proceeding
45 merely because they were presented to the patient safety
46 committee or governing board of a medical facility.
47 (b) Meetings.--No person who performs responsibilities for
48 or participates in meetings of the patient safety committee or
49 governing board of a medical facility pursuant to section
50 2219.1(b) shall be allowed to testify as to any matters within
51 the knowledge gained by the person's responsibilities or
52 participation on the patient safety committee or governing board
53 of a medical facility, provided, however, the person shall be
54 allowed to testify as to any matters within the person's
55 knowledge which was gained outside of the persons's
56 responsibilities or participation on the patient safety
57 committee or governing board of a medical facility pursuant to
58 section 2219.1(b).
59 (c) Applicability.--The confidentiality protections set
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1 forth in subsections (a) and (b) shall only apply to the
2 documents, materials or information prepared or created pursuant
3 to the responsibilities of the patient safety committee or
4 governing board of a medical facility set forth in section
5 2219.1(b).
6 (d) Received materials.--Except as set forth in subsection
7 (f), any documents, materials or information received by the
8 authority or department from the medical facility, health care
9 worker, patient safety committee or governing board of a medical
10 facility solely prepared or created for the purpose of
11 compliance with section 2219.1(b) or of reporting under section
12 2214(a)(5) or (b), 2216(a)(2) or (3), 2217(b)(3), 2218(a),
13 2219(4), 2219.1(b)(5) or 2219.4 shall not be discoverable or
14 admissible as evidence in any civil or administrative action or
15 proceeding. Any records received by the authority or department
16 from the medical facility, health care worker, patient safety
17 committee or governing board of a medical facility pursuant to
18 the requirements of this subarticle shall not be discoverable
19 from the department or the authority in any civil or
20 administrative action or proceeding. Documents, materials,
21 records or information may be used by the authority or
22 department to comply with the reporting requirements under
23 subsection (f) and section 2214(a)(7) or (c) or 2216(b).
24 (e) Document review.--
25 (1) Except as set forth in paragraph (2), no current or
26 former employee of the authority, the department or the
27 Department of State shall be allowed to testify as to any
28 matters gained by reason of his or her review of documents,
29 materials, records or information submitted to the authority
30 by the medical facility or health care worker pursuant to the
31 requirements of this subarticle.
32 (2) Paragraph (1) does not apply to findings or actions
33 by the department or the Department of State which are public
34 records.
35 (f) Access.--
36 (1) The department shall have access to the information
37 under section 2219.4(a) or (c) and may use such information
38 for the sole purpose of any licensure, approval or corrective
39 action against a medical facility. This exemption to use the
40 information received pursuant to section 2219.4(a) or (c)
41 shall only apply to licensure or corrective actions and shall
42 not be utilized to permit the disclosure of any information
43 obtained under section 2219.4(a) or (c) for any other
44 purpose.
45 (2) The Department of State shall have access to the
46 information under section 2219.4(a) and may use such
47 information for the sole purpose of any licensure or
48 disciplinary action against a health care worker. This
49 exemption to use the information received pursuant to section
50 2219.4(a) shall only apply to licensure or disciplinary
51 actions and shall not be utilized to permit the disclosure of
52 any information obtained under section 2219.4(a) for any
53 other purpose.
54 (g) Original source document.--In the event an original
55 source document as set forth in subsection (a) is determined by
56 a court of competent jurisdiction to be unavailable from the
57 health care worker or medical facility in a civil action or
58 proceeding, then in that circumstance alone the department may
59 be required pursuant to a court order to release that original
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1 source document to the party identified in the court order.
2 (h) Right-to-know requests.--Any documents, materials or
3 information made confidential by subsection (a) shall not be
4 subject to requests under the act of June 21, 1957 (P.L.390,
5 No.212), referred to as the Right-to-Know Law.
6 (i) Liability.--Notwithstanding any other provision of law,
7 no person providing information or services to the patient
8 safety committee, governing board of a medical facility,
9 authority or department shall be held by reason of having
10 provided such information or services to have violated any
11 criminal law, or to be civilly liable under any law, unless such
12 information is false and the person providing such information
13 knew or had reason to believe that such information was false
14 and was motivated by malice toward any person directly affected
15 by such action.
16 Section 2219.3. Patient safety discount.
17 A medical facility may make application to the department for
18 certification of any program that is recommended by the
19 authority that results in the reduction of serious events at
20 that facility. The department, in consultation with the
21 Insurance Department, shall develop the criteria for such
22 certification. Insurers shall file with the Insurance Department
23 a discount in the rate or rates applicable for mandated basic
24 insurance coverage to reflect the initiation of a certified
25 program. The Insurance Department shall review all filings in
26 accordance with the act of June 11, 1947 (P.L.538, No.246),
27 known as The Casualty and Surety Rate Regulatory Act. A medical
28 facility shall receive a discount in the rate or rates
29 applicable for mandated basic insurance coverage required by
30 law, consistent with the level of such discount approved by the
31 Insurance Department. In reviewing filings under this section,
32 the commissioner shall consider whether and the extent to which
33 the program certified under this section is otherwise covered
34 under a program of risk management offered by an insurance
35 company or exchange or self-insurance plan providing medical
36 professional liability coverage.
37 Section 2219.4. Medical facility reports and notifications.
38 (a) Serious event reports.--A medical facility shall report
39 the occurrence of a serious event to the department and the
40 authority within 24 hours of the medical facility's confirmation
41 of the occurrence of the serious event. The report to the
42 department and the authority shall be in the form and manner
43 prescribed by the authority in consultation with the department
44 and shall not include the name of any patient or any other
45 identifiable individual information.
46 (b) Incident reports.--A medical facility shall report the
47 occurrence of an incident to the authority in a form and manner
48 prescribed by the authority and shall not include the name of
49 any patient or any other identifiable individual information.
50 (c) Infrastructure failure reports.--A medical facility
51 shall report the occurrence of an infrastructure failure to the
52 department within 24 hours of the medical facility's
53 confirmation of the occurrence or discovery of the
54 infrastructure failure. The report to the department shall be in
55 the form and manner prescribed by the department.
56 (d) Effect of report.--Compliance with this section by a
57 medical facility shall satisfy the reporting requirements of the
58 act of July 19, 1979 (P.L.130, No.48), known as the Health Care
59 Facilities Act.
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1 (e) Notification to licensure boards.--If a medical facility
2 discovers that a licensee providing health care services in the
3 medical facility during a serious event failed to report the
4 event in accordance with section 2218(a), the medical facility
5 shall notify the licensee's licensing board of the failure to
6 report.
7 (f) Failure to report or notify.--Failure to report a
8 serious event or an infrastructure failure as required by this
9 section or to develop and comply with the patient safety plan in
10 accordance with section 2217 or to notify the patient in
11 accordance with section 2218(b) shall be a violation of the
12 Health Care Facilities Act and, in the case of an abortion
13 facility, may be a basis for revocation of approval pursuant to
14 28 Pa. Code § 29.43 (relating to facility approval). In addition
15 to any penalty which may be imposed under the Health Care
16 Facilities Act or under 18 Pa.C.S. Ch. 32 (relating to
17 abortion), a medical facility which fails to report a serious
18 event or an infrastructure failure or to notify a licensure
19 board in accordance with this chapter may be subject to an
20 administrative penalty of $1,000 per day imposed by the
21 department.
22 (g) Report submission.--Within 30 days following notice
23 published pursuant to section 2293, a medical facility shall
24 begin reporting serious events, incidents and infrastructure
25 failures consistent with the requirements of this section.
26 Section 2219.5. Existing regulations.
27 The provisions of 28 Pa. Code § 51.3(f) and (g) (relating to
28 notification) shall be abrogated with respect to a medical
29 facility upon the reporting of a serious event, incident or
30 infrastructure failure pursuant to section 2219.4.
31 Section 2219.6. Abortion facilities.
32 (a) General.--This section shall apply to abortion
33 facilities.
34 (b) Application during current year.--An abortion facility
35 that performs 100 or more abortions after the effective date of
36 this subarticle during the calendar year in which this section
37 takes effect shall be subject to the provisions of this chapter
38 at the beginning of the immediately following calendar year and
39 during each subsequent calendar year unless the facility gives
40 the department written notice that it will not be performing 100
41 or more abortions during such following calendar year and does
42 not perform 100 or more abortions during that calendar year.
43 (c) Application in subsequent calendar years.--In the
44 calendar years following the effective date of the act of March
45 20, 2002 (P.L.154, No.13), known as the Medical care
46 Availability and Reduction of Error (Mcare) Act, this chapter
47 shall apply to an abortion facility not subject to subsection
48 (b) on the day following the performance of its 100th abortion
49 and for the remainder of that calendar year and during each
50 subsequent calendar year unless the facility gives the
51 department written notice that it will not be performing 100 or
52 more abortions during such following calendar year and does not
53 perform 100 or more abortions during that calendar year.
54 (d) Patient safety plan.--An abortion facility shall submit
55 its patient safety plan under section 2217(c) within 60 days
56 following the application of this chapter to the facility.
57 (e) Reporting.--An abortion facility shall begin reporting
58 serious events, incidents and infrastructure failures consistent
59 with the requirements of section 2219.4 upon the submission of
HB2098A05967 - 13 -
1 its patient safety plan to the department.
2 (f) Construction.--Nothing in this chapter shall be
3 construed to limit the provisions of 18 Pa.C.S. Ch. 32 (relating
4 to abortion) or any regulation adopted under 18 Pa.C.S. Ch. 32.
5 CHAPTER 4
6 HEALTH CARE-ASSOCIATED INFECTIONS
7 Section 2221. Scope of chapter.
8 This chapter relates to the reduction and prevention of
9 health care-associated infections.
10 Section 2222. Definitions.
11 The following words and phrases when used in this chapter
12 shall have the meanings given to them in this section unless the
13 context clearly indicates otherwise:
14 "Ambulatory surgical facility." An entity defined as an
15 ambulatory surgical facility under the act of July 19, 1979
16 (P.L.130, No.48), known as the Health Care Facilities Act.
17 "Antimicrobial agent." A general term for drugs, chemicals
18 or other substances that kill or slow the growth of microbes,
19 including, but not limited to, antibacterial drugs, antiviral
20 agents, antifungal agents and antiparasitic drugs.
21 "Authority." The Patient Safety Authority established under
22 this subarticle.
23 "Centers for Disease Control and Prevention" or "CDC." The
24 United States Department of Health and Human Services Centers
25 for Disease Control and Prevention.
26 "Colonization." The first stage of microbial infection or
27 the presence of nonreplicating microorganisms usually present in
28 host tissues that are in contact with the external environment.
29 "Council." The Pennsylvania Health Care Cost Containment
30 Council established under the act of July 8, 1986 (P.L.408,
31 No.89), known as the Health Care Cost Containment Act.
32 "Department." The Department of Health of the Commonwealth.
33 "Fund." The Patient Safety Trust Fund as defined in section
34 2215.
35 "Health care-associated infection." A localized or systemic
36 condition that results from an adverse reaction to the presence
37 of an infectious agent or its toxins that:
38 (1) occurs in a patient in a health care setting;
39 (2) was not present or incubating at the time of
40 admission, unless the infection was related to a previous
41 admission to the same setting; and
42 (3) if occurring in a hospital setting, meets the
43 criteria for a specific infection site as defined by the
44 Centers for Disease Control and Prevention and its National
45 Healthcare Safety Network.
46 "Health Care Facilities Act." The act of July 19, 1979
47 (P.L.130, No.48), known as the Health Care Facilities Act.
48 "Health care facility." A hospital or nursing home licensed
49 or otherwise regulated to provide health care services under the
50 laws of this Commonwealth.
51 "Health payor." An individual or entity providing a group
52 health, sickness or accident policy, subscriber contract or
53 program issued or provided by an entity, including any one of
54 the following:
55 (1) The act of June 2, 1915 (P.L.736, No.338), known as
56 the Workers' Compensation Act.
57 (2) The act of May 17, 1921 (P.L.682, No.284), known as
58 The Insurance Company Law of 1921.
59 (3) The act of December 29, 1972 (P.L.1701, No.364),
HB2098A05967 - 14 -
1 known as the Health Maintenance Organization Act.
2 (4) The act of May 18, 1976 (P.L.123, No.54), known as
3 the Individual Accident and Sickness Insurance Minimum
4 Standards Act.
5 (5) 40 Pa.C.S. Ch. 61 (relating to hospital plan
6 corporations).
7 (6) 40 Pa.C.S. Ch. 63 (relating to professional health
8 services plan corporations).
9 "Medical assistance." The Commonwealth's medical assistance
10 program established under the act of June 13, 1967 (P.L.31,
11 No.21), known as the Public Welfare Code.
12 "Methicillin-resistant Staphylococcus aureus" or "MRSA." A
13 strain of bacteria that is resistant to certain antibiotics and
14 is difficult to treat medically.
15 "Multidrug-resistant organism" or "MDRO." Microorganisms,
16 predominantly bacteria, that are resistant to more than one
17 class of antimicrobial agents.
18 "National Healthcare Safety Network" or "NHSN." A secure
19 Internet-based data collection system managed by the Division of
20 Healthcare Quality Promotion at the Centers for Disease Control
21 and Prevention.
22 "Nationally recognized standards." Standards developed by
23 the Department of Health and Human Services Centers for Disease
24 Control and Prevention (CDC) and its National Healthcare Safety
25 Network.
26 "Surveillance system." An ongoing and comprehensive method
27 of measuring health status, outcomes and related processes of
28 care, analyzing data and providing information from data sources
29 within a health care facility to assist in reducing health care-
30 associated infections.
31 Section 2223. Infection control plan.
32 (a) Development and compliance.--By September 18, 2002, a
33 health care facility and an ambulatory surgical facility shall
34 develop and implement an internal infection control plan that
35 shall be established for the purpose of improving the health and
36 safety of patients and health care workers and shall include:
37 (1) A multidisciplinary committee including
38 representatives from each of the following if applicable to
39 that specific health care facility:
40 (i) Medical staff that could include the chief
41 medical officer or the nursing home medical director.
42 (ii) Administration representatives that could
43 include the chief executive officer, the chief financial
44 officer or the nursing home administrator.
45 (iii) Laboratory personnel.
46 (iv) Nursing staff that could include a director of
47 nursing or a nursing supervisor.
48 (v) Pharmacy staff that could include the chief of
49 pharmacy.
50 (vi) Physical plant personnel.
51 (vii) A patient safety officer.
52 (viii) Members from the infection control team,
53 which could include an epidemiologist.
54 (ix) The community, except that these
55 representatives may not be an agent, employee or
56 contractor of the health care facility or ambulatory
57 surgical facility.
58 (2) Effective measures for the detection, control and
59 prevention of health care-associated infections.
HB2098A05967 - 15 -
1 (3) Culture surveillance processes and policies.
2 (4) A system to identify and designate patients known to
3 be colonized or infected with MRSA or other MDRO that
4 includes:
5 (i) The procedures necessary for requiring cultures
6 and screenings for nursing home residents admitted to a
7 hospital.
8 (ii) The procedures for identifying other high-risk
9 patients admitted to the hospital who necessitate routine
10 cultures and screening.
11 (5) The procedures and protocols for staff who may have
12 had potential exposure to a patient or resident known to be
13 colonized or infected with MRSA or MDRO, including cultures
14 and screenings, prophylaxis and follow-up care.
15 (6) An outreach process for notifying a receiving health
16 care facility or an ambulatory surgical facility of any
17 patient known to be colonized prior to transfer within or
18 between facilities.
19 (7) A required infection-control intervention protocol
20 which includes:
21 (i) Infection control precautions, based on
22 nationally recognized standards, for general surveillance
23 of infected or colonized patients.
24 (ii) Intervention protocols based on evidence-based
25 standards.
26 (iii) Isolation procedures.
27 (iv) Physical plant operations related to infection
28 control.
29 (v) Appropriate use of antimicrobial agents.
30 (vi) Mandatory educational programs for personnel.
31 (vii) Fiscal and human resource requirements.
32 (8) The procedure for distribution of advisories issued
33 under section 2225(b)(4) so as to ensure easy access in each
34 health care facility for all administrative staff, medical
35 personnel and health care workers.
36 (b) Department review.--No later than 14 days after
37 implementation of its infection control plan, a health care
38 facility and an ambulatory surgical facility shall submit the
39 plan to the department. The department shall review each health
40 care facility's and ambulatory surgical facility's infection
41 control plan to ensure compliance under the Health Care
42 Facilities Act and section 2228(3). If, at any time, the
43 department finds that an infection control plan does not meet
44 the requirements of this chapter or any applicable laws, the
45 health care facility or ambulatory surgical facility shall
46 modify its plan to come into compliance.
47 (c) Notification.--Upon submission to the department of its
48 infection control plan, a health care facility and an ambulatory
49 surgical facility shall notify all health care workers, physical
50 plant personnel and medical staff of the facility of the
51 infection control plan. Compliance with the infection control
52 plan shall be enforced by the facility.
53 Section 2224. Health care facility reporting.
54 (a) Nursing home reporting.--In addition to reporting
55 pursuant to the Health Care Facilities Act, a nursing home shall
56 also electronically report health care-associated infection data
57 to the department and the authority using nationally recognized
58 standards based on CDC definitions, provided that the data is
59 reported on a patient-specific basis in the form, with the time
HB2098A05967 - 16 -
1 for reporting and format as determined by the department and the
2 authority.
3 (b) Hospital reporting.--A hospital shall report health
4 care-associated infection data to the CDC and its National
5 Healthcare Safety Network by November 18, 2002. A hospital
6 shall:
7 (1) Report all components as defined in the NHSN Manual,
8 Patient Safety Component Protocol and any successor edition,
9 for all patients throughout the facility on a continuous
10 basis.
11 (2) Report patient-specific data to include, at a
12 minimum, patient identification number, gender and date of
13 birth. The patient identification number must be compatible
14 with the patient identifier on the uniform billing forms
15 submitted to the council.
16 (3) Report data on a monthly basis in accordance with
17 protocols defined in the NHSN Manual as updated by the CDC.
18 (4) Authorize the department, the authority and the
19 council to have access to the NHSN for facility-specific
20 reports of health care-associated infection data contained in
21 the NHSN database for purposes of viewing and analyzing that
22 data.
23 (c) Strategic assessments.--Each hospital, other than those
24 currently using a qualified electronic surveillance system,
25 shall by December 31, 2007, conduct a strategic assessment of
26 the utility and efficacy of implementing a qualified electronic
27 surveillance system pursuant to subsections (d) and (e) for the
28 purpose of improving infection control and prevention. The
29 assessment shall also include an examination of financial and
30 technological barriers to implementation of a qualified
31 electronic surveillance system pursuant to subsections (d) and
32 (e). The assessment shall be submitted to the department within
33 14 days of completion.
34 (d) Qualified electronic surveillance system.--A qualified
35 electronic surveillance system shall include the following
36 minimum elements:
37 (1) Extractions of existing electronic clinical data
38 from health care facility systems on an ongoing, constant and
39 consistent basis.
40 (2) Translation of nonstandardized laboratory, pharmacy
41 and/or radiology data into uniform information that can be
42 analyzed on a population-wide basis.
43 (3) Clinical support, educational tools and training to
44 ensure that information provided under this subsection will
45 assist the hospital in reducing the incidence of health care-
46 associated infections in a manner that meets or exceeds
47 benchmarks.
48 (4) Clinical improvement measurements designed to
49 provide positive and negative feedback to health care
50 facility infection control staff.
51 (5) Collection of data that is patient-specific for the
52 entire facility.
53 (e) Electronic surveillance system implementation.--Except
54 as otherwise provided in this subsection, a hospital shall have
55 a qualified electronic surveillance system in place by December
56 31, 2008. The following apply:
57 (1) If a determination has been made under subsection
58 (c) that a qualified electronic surveillance system can be
59 implemented, the hospital shall comply with subsection (f)
HB2098A05967 - 17 -
1 until implementation.
2 (2) If a determination has been made under subsection
3 (c) that a qualified electronic surveillance system cannot be
4 implemented, by December 31, 2008, the hospital shall comply
5 with subsection (f) until such time as a qualified electronic
6 surveillance system is implemented.
7 (f) Surveillance system.--Until a hospital implements a
8 qualified electronic surveillance system, the facility shall use
9 a surveillance system that includes:
10 (1) A written plan of the elements of the surveillance
11 process to include, but not be limited to, definitions,
12 collection of surveillance data and reporting of information.
13 (2) Identification of personnel resources that will be
14 used in the surveillance process.
15 (3) Identification of information or technological
16 support needed to implement the surveillance system.
17 (4) A process for periodic evaluation and validation to
18 ensure accuracy of surveillance.
19 (g) Continued reporting.--Until hospitals begin reporting to
20 NHSN and have authorized access to the department, the authority
21 and the council, hospitals shall continue to meet reporting
22 requirements pursuant to Chapter 3 of this subarticle and
23 section 6 of the act of July 8, 1986 (P.L.408, No.89), known as
24 the Health Care Cost Containment Act.
25 Section 2225. Patient Safety Authority jurisdiction.
26 (a) Health care facility reports to authority.--The
27 occurrence of a health care-associated infection in a health
28 care facility shall be deemed a serious event as defined in
29 section 2212. The report to the authority shall also be subject
30 to all of the confidentiality protections set forth in section
31 2219.2. The occurrence of a health care-associated infection
32 shall only constitute a serious event for hospitals if it meets
33 the criteria for reporting as defined by the current CDC and
34 NHSN Manual, Patient Safety Component Protocol and any successor
35 edition.
36 (b) Duties.--In addition to its existing responsibilities,
37 the authority is responsible for all of the following:
38 (1) Establishing, based on CDC definitions, uniform
39 definitions using nationally recognized standards for the
40 identification and reporting of health care-associated
41 infections by nursing homes.
42 (2) Publishing a notice in the Pennsylvania Bulletin
43 stating the uniform reporting requirements established
44 pursuant to this subsection and the effective date for the
45 commencement of required reporting by hospitals consistent
46 with this chapter, which, at a minimum, shall begin 120 days
47 after publication of the notice.
48 (3) Publishing a notice in the Pennsylvania Bulletin
49 stating the uniform reporting requirements established
50 pursuant to this subsection and section 2224(a) and the
51 effective date for the commencement of required reporting by
52 nursing homes consistent with this chapter, which, at a
53 minimum, shall begin 120 days after publication of the
54 notice.
55 (4) Issuing advisories to health care facilities in a
56 manner similar to section 2214(a)(7).
57 (5) Including a separate category for providing
58 information about health care-associated infections in the
59 annual report under section 2214(c).
HB2098A05967 - 18 -
1 (6) Creating and conducting training programs for
2 infection control teams, health care workers and physical
3 plant personnel about the prevention and control of health
4 care-associated infections. Nothing in this subarticle shall
5 preclude the authority from working with the department or
6 any organization in conducting these programs.
7 (7) Appointing an advisory panel of health care-
8 associated infection control experts, including at least one
9 representative of a not-for-profit nursing home, at least one
10 representative of a for-profit nursing home, at least one
11 representative of a county nursing home and at least two
12 representatives of a hospital, one of which must be from a
13 rural hospital, to assist in carrying out the requirements of
14 this chapter.
15 (c) Public comment.--Prior to publishing a notice under
16 subsection (b)(2) and (3), the authority shall solicit public
17 comments for at least 30 days. The authority shall respond to
18 the comments it receives during the 30-day public comment
19 period.
20 Section 2226. Payment for performing routine cultures and
21 screenings.
22 The cost of routine cultures and screenings performed on
23 patients in compliance with a health care facility's and
24 ambulatory surgical facility's infection control plan shall be
25 considered a reimbursable cost to be paid by health payors and
26 medical assistance upon Federal approval. These costs shall be
27 subject to any copayment, coinsurance or deductible in amounts
28 imposed in any applicable policy issued by a health payor and to
29 any agreements between a health care facility, ambulatory
30 surgical facility and payor.
31 Section 2227. Quality improvement payment.
32 (a) General rule.--Commencing on January 1, 2009, the
33 Department of Public Welfare in consultation with the department
34 shall make a quality improvement payment to a health care
35 facility that achieves at least a 10% reduction for that
36 facility in the total number of reported health care-associated
37 infections over the preceding year pursuant to section
38 2228(7)(i). For calendar year 2010 and thereafter, the
39 Department of Public Welfare shall consult with the department
40 to establish appropriate percentage benchmarks for the reduction
41 of health care-associated infections in each health care
42 facility in order to be eligible for a payment pursuant to this
43 section.
44 (b) Additional quality improvement payments.--Nothing in
45 this section shall prevent the Department of Public Welfare in
46 consultation with the department from providing additional
47 quality improvement payments to a health care facility that has
48 implemented a qualified electronic surveillance system and has
49 achieved or exceeded reductions in the total number of reported
50 health care-associated infections for that facility over the
51 preceding year as provided in subsection (a).
52 (c) Eligibility.--In addition to meeting the requirements
53 contained in this section, to be eligible for a quality
54 improvement payment, a health care facility must be in
55 compliance with health care-associated reporting requirements
56 contained in this subarticle and the Health Care Facilities Act.
57 (d) Distribution of funds.--Funds for the purpose of
58 implementing this section shall be appropriated to the
59 Department of Public Welfare and distributed to eligible health
HB2098A05967 - 19 -
1 care facilities as set forth in this section. Quality
2 improvement payments to health care facilities shall be limited
3 to funds available for this purpose.
4 Section 2228. Duties of Department of Health.
5 The department is responsible for the following:
6 (1) The development of a public health awareness
7 campaign on health care-associated infections to be known as
8 the Community Awareness Program. The program shall provide
9 information to the public on causes and symptoms of health
10 care-associated infections, diagnosis and treatment
11 prevention methods and the proper use of antimicrobial
12 agents.
13 (2) The consideration and determination of the
14 feasibility of establishing an active surveillance program
15 involving other entities, such as athletic teams or
16 correctional facilities for the purpose of identifying those
17 persons in the community that are colonized and at risk of
18 susceptibility to and transmission of MRSA bacteria.
19 (3) The review of each health care facility's and
20 ambulatory surgical facility's infection control plan. This
21 review shall be performed pursuant to the department's
22 authority under the Health Care Facilities Act and the
23 regulations promulgated thereunder.
24 (4) The development of recommendations and best
25 practices that implement and effectuate improved screenings
26 and cultures and other means for the reduction and
27 elimination of health care-associated infections.
28 (5) The development of recommendations regarding
29 evidence-based screening protocols for an individual with
30 MRSA and MDRO prior to admission to a hospital.
31 (6) The review of strategic assessments under section
32 2224(c) and the provision of assistance to hospitals in
33 implementing a qualified electronic surveillance system
34 pursuant to the requirements of section 2224(d) and (e).
35 (7) The development of a methodology, in consultation
36 with the authority and the council, for determining and
37 assessing the rate of health care-associated infections that
38 occur in health care facilities in this Commonwealth. This
39 methodology shall be used:
40 (i) to determine the rate of reduction in health
41 care-associated infection rates within a health care
42 facility during a reporting period;
43 (ii) to compare health care-associated infection
44 rates among similar health care facilities within this
45 Commonwealth; and
46 (iii) to compare health care-associated infection
47 rates among similar health care facilities nationwide.
48 (8) The development, in consultation with the authority
49 and the council, of reasonable benchmarks to measure the
50 progress health care facilities make toward reducing health
51 care-associated infections. Beginning in 2010, all health
52 care facilities shall be measured against these benchmarks. A
53 health care facility with a rate of health care-associated
54 infections that does not meet the benchmark appropriate to
55 that type of facility shall be required to submit a plan of
56 correction to the department within 60 days of receiving
57 notification that the rate does not meet the benchmark. After
58 180 days, a facility that has not shown progress in reducing
59 its rate of infection shall consult with and obtain
HB2098A05967 - 20 -
1 department approval for a new plan of correction that
2 includes resources available to assist the health care
3 facility. After an additional 180 days, a facility that fails
4 to show progress in reducing its rate of infection may be
5 subject to action under the Health Care Facilities Act.
6 (9) Publishing a notice in the Pennsylvania Bulletin of
7 the specific benchmarks the department shall use to measure
8 the progress of health care facilities in reducing health
9 care-associated infections. Prior to publishing the notice,
10 the department shall seek public comments for at least 30
11 days. The department shall respond to the comments it
12 receives during the 30-day public comment period.
13 Section 2229. Nursing home assessment to Patient Safety
14 Authority.
15 (a) Assessment.--Commencing July 1, 2008, each nursing home
16 shall pay the department a surcharge on its licensing fee as
17 necessary to provide sufficient revenues for the authority to
18 perform its responsibilities under this chapter. The total
19 annual assessment for all nursing homes shall not be more than
20 an aggregate amount of $1,000,000. The department shall transfer
21 the total assessment amount to the fund within 30 days of
22 receipt.
23 (b) Base amount.--For each succeeding calendar year, the
24 authority shall determine the appropriate assessment amount and
25 the department shall assess each nursing home its proportionate
26 share of the authority's budget for its responsibilities under
27 this chapter. The total assessment amount shall not be more than
28 $1,000,000 in fiscal year 2008-2009 and shall be increased
29 according to the Consumer Price Index in each succeeding fiscal
30 year.
31 (c) Expenditures.--Money appropriated to the fund under this
32 chapter shall be expended by the authority to implement this
33 chapter.
34 (d) Dissolution.--In the event that the fund is discontinued
35 or the authority is dissolved by operation of law, any balance
36 paid by nursing homes remaining in the fund, after deducting
37 administrative costs of liquidation, shall be returned to the
38 nursing homes in proportion to their financial contributions to
39 the fund in the preceding licensing period.
40 (e) Failure to pay surcharge.--If, after 30-days' notice, a
41 nursing home fails to pay a surcharge levied by the department
42 under this chapter, the department may assess an administrative
43 penalty of $1,000 per day until the surcharge is paid.
44 (f) Reimbursable cost.--Subject to Federal approval, the
45 annual assessment amount paid by a nursing home shall be a
46 reimbursable cost under the medical assistance program. The
47 Department of Public Welfare shall pay each nursing home, as a
48 separate, pass-through payment, an amount equal to the
49 assessment paid by a nursing home multiplied by the facility's
50 medical assistance occupancy rate as reported in its annual cost
51 report.
52 Section 2229.1. Scope of reporting.
53 For purposes of reporting health care-associated infections
54 to the Commonwealth, its agencies and independent agencies, this
55 chapter sets forth the applicable criteria to be utilized by
56 health care facilities in making such reports. Nothing in this
57 subarticle shall supersede the requirements set forth in the act
58 of April 23, 1956 (1955 P.L.1510, No.500), known as the Disease
59 Prevention and Control Law of 1955, and the regulations
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1 promulgated thereunder.
2 Section 2229.2. Penalties.
3 (a) Violation of Health Care Facilities Act.--The failure of
4 a health care facility to report health care-associated
5 infections as required by sections 2224 and 2225 or the failure
6 of a health care facility or ambulatory surgical facility to
7 develop, implement and comply with its infection control plan in
8 accordance with the requirements of section 2223 shall be a
9 violation of the Health Care Facilities Act.
10 (b) Administrative penalty.--In addition to any penalty that
11 may be imposed under the Health Care Facilities Act, a health
12 care facility which negligently fails to report a health care-
13 associated infection as required under this chapter may be
14 subject to an administrative penalty of $1,000 per day imposed
15 by the department.
16 CHAPTER 5
17 MEDICAL PROFESSIONAL LIABILITY
18 Section 2231. Scope of chapter.
19 This chapter relates to medical professional liability.
20 Section 2232. Declaration of policy.
21 The General Assembly finds and declares that it is the
22 purpose of this chapter to ensure a fair legal process and
23 reasonable compensation for persons injured due to medical
24 negligence in this Commonwealth. Ensuring the future
25 availability of and access to quality health care is a
26 fundamental responsibility that the General Assembly must
27 fulfill as a promise to our children, our parents and our
28 grandparents.
29 Section 2233. Definitions.
30 The following words and phrases when used in this chapter
31 shall have the meanings given to them in this section unless the
32 context clearly indicates otherwise:
33 "Commission." The Interbranch Commission on Venue
34 established in section 2239.5.
35 "Department." The Insurance Department of the Commonwealth.
36 "Health care provider." A primary health care center, a
37 personal care home licensed by the Department of Public Welfare
38 pursuant to the act of June 13, 1967 (P.L.31, No.21), known as
39 the Public Welfare Code, or a person, including a corporation,
40 university or other educational institution licensed or approved
41 by the Commonwealth to provide health care or professional
42 medical services as a physician, a certified nurse midwife, a
43 podiatrist, hospital, nursing home, birth center, and an
44 officer, employee or agent of any of them acting in the course
45 and scope of employment.
46 "Informed consent." The consent of a patient to the
47 performance of a procedure in accordance with section 2234.
48 Section 2234. Informed consent.
49 (a) Duty of physicians.--Except in emergencies, a physician
50 owes a duty to a patient to obtain the informed consent of the
51 patient or the patient's authorized representative prior to
52 conducting the following procedures:
53 (1) Performing surgery, including the related
54 administration of anesthesia.
55 (2) Administering radiation or chemotherapy.
56 (3) Administering a blood transfusion.
57 (4) Inserting a surgical device or appliance.
58 (5) Administering an experimental medication, using an
59 experimental device or using an approved medication or device
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1 in an experimental manner.
2 (b) Description of procedure.--Consent is informed if the
3 patient has been given a description of a procedure set forth in
4 subsection (a) and the risks and alternatives that a reasonably
5 prudent patient would require to make an informed decision as to
6 that procedure. The physician shall be entitled to present
7 evidence of the description of that procedure and those risks
8 and alternatives that a physician acting in accordance with
9 accepted medical standards of medical practice would provide.
10 (c) Expert testimony.--Expert testimony is required to
11 determine whether the procedure constituted the type of
12 procedure set forth in subsection (a) and to identify the risks
13 of that procedure, the alternatives to that procedure and the
14 risks of these alternatives.
15 (d) Liability.--
16 (1) A physician is liable for failure to obtain the
17 informed consent only if the patient proves that receiving
18 such information would have been a substantial factor in the
19 patient's decision whether to undergo a procedure set forth
20 in subsection (a).
21 (2) A physician may be held liable for failure to seek a
22 patient's informed consent if the physician knowingly
23 misrepresents to the patient his or her professional
24 credentials, training or experience.
25 Section 2235. Punitive damages.
26 (a) Award.--Punitive damages may be awarded for conduct that
27 is the result of the health care provider's willful or wanton
28 conduct or reckless indifference to the rights of others. In
29 assessing punitive damages, the trier of fact can properly
30 consider the character of the health care provider's act, the
31 nature and extent of the harm to the patient that the health
32 care provider caused or intended to cause and the wealth of the
33 health care provider.
34 (b) Gross negligence.--A showing of gross negligence is
35 insufficient to support an award of punitive damages.
36 (c) Vicarious liability.--Punitive damages shall not be
37 awarded against a health care provider who is only vicariously
38 liable for the actions of its agent that caused the injury
39 unless it can be shown by a preponderance of the evidence that
40 the party knew of and allowed the conduct by its agent that
41 resulted in the award of punitive damages.
42 (d) Total amount of damages.--Except in cases alleging
43 intentional misconduct, punitive damages against an individual
44 physician shall not exceed 200% of the compensatory damages
45 awarded. Punitive damages, when awarded, shall not be less than
46 $100,000 unless a lower verdict amount is returned by the trier
47 of fact.
48 (e) Allocation.--Upon the entry of a verdict including an
49 award of punitive damages, the punitive damages portion of the
50 award shall be allocated as follows:
51 (1) 75% shall be paid to the prevailing party; and
52 (2) 25% shall be paid to the Medical Care Availability
53 and Reduction of Error (Mcare) Fund.
54 Section 2236. Affidavit of noninvolvement.
55 (a) General provisions.--Any health care provider named as a
56 defendant in a medical professional liability action may cause
57 the action against that provider to be dismissed upon the filing
58 of an affidavit of noninvolvement with the court. The affidavit
59 of noninvolvement shall set forth with particularity the facts
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1 which demonstrate that the provider was misidentified or
2 otherwise not involved, individually or through its servants or
3 employees, in the care and treatment of the claimant and was not
4 obligated, either individually or through its servants or
5 employees, to provide for the care and treatment of the
6 claimant.
7 (b) Statute of limitations.--The filing of an affidavit of
8 noninvolvement by a health care provider shall have the effect
9 of tolling the statute of limitations as to that provider with
10 respect to the claim at issue as of the date of the filing of
11 the original pleading.
12 (c) Challenge.--A codefendant or claimant shall have the
13 right to challenge an affidavit of noninvolvement by filing a
14 motion and submitting an affidavit which contradicts the
15 assertions of noninvolvement made by the health care provider in
16 the affidavit of noninvolvement.
17 (d) False or inaccurate filing or statement.--If the court
18 determines that a health care provider named as a defendant
19 falsely files or makes false or inaccurate statements in an
20 affidavit of noninvolvement, the court upon motion or upon its
21 own initiative shall immediately reinstate the claim against
22 that provider. In any action where the health care provider is
23 found by the court to have knowingly filed a false or inaccurate
24 affidavit of noninvolvement, the court shall impose upon the
25 person who signed the affidavit or represented the party, or
26 both, an appropriate sanction, including, but not limited to, an
27 order to pay to the other party or parties the amount of the
28 reasonable expenses incurred because of the filing of the false
29 affidavit, including a reasonable attorney fee.
30 Section 2237. Advance payments.
31 No advance payment made by the health care provider or the
32 provider's basic coverage insurance carrier to or for the
33 claimant shall be construed as an admission of liability for
34 injuries or damages suffered by the claimant. Notwithstanding
35 section 2238, evidence of an advance payment shall not be
36 admissible by a claimant in a medical professional liability
37 action.
38 Section 2238. Collateral sources.
39 (a) General rule.--Except as set forth in subsection (d), a
40 claimant in a medical professional liability action is precluded
41 from recovering damages for past medical expenses or past lost
42 earnings incurred to the time of trial to the extent that the
43 loss is covered by a private or public benefit or gratuity that
44 the claimant has received prior to trial.
45 (b) Option.--The claimant has the option to introduce into
46 evidence at trial the amount of medical expenses actually
47 incurred, but the claimant shall not be permitted to recover for
48 such expenses as part of any verdict except to the extent that
49 the claimant remains legally responsible for such payment.
50 (c) No subrogation.--Except as set forth in subsection (d),
51 there shall be no right of subrogation or reimbursement from a
52 claimant's tort recovery with respect to a public or private
53 benefit covered in subsection (a).
54 (d) Exceptions.--The collateral source provisions set forth
55 in subsection (a) shall not apply to the following:
56 (1) Life insurance, pension or profit-sharing plans or
57 other deferred compensation plans, including agreements
58 pertaining to the purchase or sale of a business.
59 (2) Social Security benefits.
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1 (3) Cash or medical assistance benefits which are
2 subject to repayment to the Department of Public Welfare.
3 (4) Public benefits paid or payable under a program
4 which under Federal statute provides for right of
5 reimbursement which supersedes State law for the amount of
6 benefits paid from a verdict or settlement.
7 Section 2239. Payment of damages.
8 (a) General rule.--In a medical professional liability
9 action, the trier of fact shall make a determination with
10 separate findings for each claimant specifying the amount of all
11 of the following:
12 (1) Except as provided for under section 2238, past
13 damages for:
14 (i) medical and other related expenses in a lump
15 sum;
16 (ii) loss of earnings in a lump sum; and
17 (iii) noneconomic loss in a lump sum.
18 (2) Future damages for:
19 (i) medical and other related expenses by year;
20 (ii) loss of earnings or earning capacity in a lump
21 sum; and
22 (iii) noneconomic loss in a lump sum.
23 (b) Future damages.--
24 (1) Except as set forth in paragraph (8), future damages
25 for medical and other related expenses shall be paid as
26 periodic payments after payment of the proportionate share of
27 counsel fees and costs based upon the present value of the
28 future damages awarded pursuant to this subsection. The trier
29 of fact may vary the amount of periodic payments for future
30 damages as set forth in subsection (a)(2)(i) from year to
31 year for the expected life of the claimant to account for
32 different annual expenditure requirements, including the
33 immediate needs of the claimant. The trier of fact shall also
34 provide for purchase and replacement of medically necessary
35 equipment in the years that expenditures will be required as
36 may be necessary.
37 (2) The trier of fact may incorporate into any future
38 medical expense award adjustments to account for reasonably
39 anticipated inflation and medical care improvements as
40 presented by competent evidence.
41 (3) Future damages as set forth in subsection (a)(2)(i)
42 shall be paid in the years that the trier of fact finds they
43 will accrue. Unless the court orders or approves a different
44 schedule for payment, the annual amounts due must be paid in
45 equal quarterly installments rounded to the nearest dollar.
46 Each installment is due and payable on the first day of the
47 month in which it accrues.
48 (4) Interest does not accrue on a periodic payment
49 before payment is due. If the payment is not made on or
50 before the due date, the legal rate of interest accrues as of
51 that date.
52 (5) Liability to a claimant for periodic payments not
53 yet due for medical expenses terminates upon the claimant's
54 death.
55 (6) Each party liable for all or a portion of the
56 judgment shall provide funding for the awarded periodic
57 payments, separately or jointly with one or more others, by
58 means of an annuity contract, trust or other qualified
59 funding plan which is approved by the court. The commissioner
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1 shall annually publish a list of insurers designated by the
2 commissioner as qualified to participate in the funding of
3 periodic payment judgments. No annuity contractor may be
4 placed on the commissioner's list of insurers unless the
5 insurer has received the highest rating for claims paying
6 ability by two independent financial services within the last
7 12 months.
8 (7) If an insurer defaults on a required periodic
9 payment due to insolvency, the claimant shall be entitled to
10 receive the payment from the Medical Care Availability and
11 Reduction of Error (Mcare) Fund or, if the fund has ceased
12 operations, from the Pennsylvania Life and Health Insurance
13 Guaranty Association or the Property and Casualty Insurance
14 Guaranty Association, whichever is applicable.
15 (8) Future damages for medical and other related
16 expenses shall not be awarded in periodic payments if the
17 claimant objects and stipulates that the total amount of the
18 future damages for medical and other related expenses,
19 without reduction to present value, does not exceed $100,000.
20 (c) Effect of full funding.--If full funding of an award
21 pursuant to this section has been provided, the judgment is
22 discharged, and any outstanding liens as a result of the
23 judgment are released.
24 (d) Retained jurisdiction.--The court which enters judgment
25 shall retain jurisdiction to enforce the judgment and to resolve
26 related disputes.
27 Section 2239.1. Reduction to present value.
28 Future damages for loss of earnings or earning capacity in a
29 medical professional liability action shall be reduced to
30 present value based upon the return that the claimant can earn
31 on a reasonably secure fixed income investment. These damages
32 shall be presented with competent evidence of the effect of
33 productivity and inflation over time. The trier of fact shall
34 determine the applicable discount rate based upon competent
35 evidence.
36 Section 2239.2. Preservation and accuracy of medical records.
37 (a) Timing.--Entries in patient charts concerning care
38 rendered shall be made contemporaneously or as soon as
39 practicable. Except as otherwise provided for in this section,
40 it shall be considered unprofessional conduct and a violation of
41 the applicable licensing statute to make alterations to a
42 patient's chart.
43 (b) Corrections and disposal of records.--It shall not be
44 considered unprofessional conduct or a violation of the
45 applicable licensing statute for a health care provider to:
46 (1) Correct information on a patient's chart where
47 information has been entered erroneously or where it is
48 necessary to clarify entries made on the chart, provided that
49 such corrections or additions shall be clearly identified as
50 subsequent entries by a date and time.
51 (2) Add information to a patient's chart where it was
52 not available at the time the record was first created,
53 provided that:
54 (i) Such additions shall be clearly dated as
55 subsequent entries.
56 (ii) A health care provider may add supplemental
57 information within a reasonable time.
58 (3) Routinely dispose of medical records as permitted by
59 law.
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1 (c) Alteration of records.--In any medical professional
2 liability action in which the claimant proves by a preponderance
3 of the evidence that there has been an intentional alteration or
4 destruction of medical records, the court in its discretion may
5 instruct the jury to consider whether such intentional
6 alteration or destruction constitutes an adverse inference.
7 (d) Licensure sanction.--Alteration or destruction of
8 medical records for the purpose of eliminating information that
9 would give rise to a medical professional liability action on
10 the part of a health care provider shall constitute a ground for
11 suspension. A health care provider who is aware of alteration or
12 destruction in violation of this section shall report any party
13 suspected of such conduct to the appropriate licensure board.
14 Section 2239.3. Expert qualifications.
15 (a) General rule.--No person shall be competent to offer an
16 expert medical opinion in a medical professional liability
17 action against a physician unless that person possesses
18 sufficient education, training, knowledge and experience to
19 provide credible, competent testimony and fulfills the
20 additional qualifications set forth in this section as
21 applicable.
22 (b) Medical testimony.--An expert testifying on a medical
23 matter, including the standard of care, risks and alternatives,
24 causation and the nature and extent of the injury, must meet the
25 following qualifications:
26 (1) Possess an unrestricted physician's license to
27 practice medicine in any state or the District of Columbia.
28 (2) Be engaged in or retired within the previous five
29 years from active clinical practice or teaching. Provided,
30 however, the court may waive the requirements of this
31 subsection for an expert on a matter other than the standard
32 of care if the court determines that the expert is otherwise
33 competent to testify about medical or scientific issues by
34 virtue of education, training or experience.
35 (c) Standard of care.--In addition to the requirements set
36 forth in subsections (a) and (b), an expert testifying as to a
37 physician's standard of care also must meet the following
38 qualifications:
39 (1) Be substantially familiar with the applicable
40 standard of care for the specific care at issue as of the
41 time of the alleged breach of the standard of care.
42 (2) Practice in the same subspecialty as the defendant
43 physician or in a subspecialty which has a substantially
44 similar standard of care for the specific care at issue,
45 except as provided in subsection (d) or (e).
46 (3) In the event the defendant physician is certified by
47 an approved board, be board certified by the same or a
48 similar approved board, except as provided in subsection (e).
49 (d) Care outside specialty.--A court may waive the same
50 subspecialty requirement for an expert testifying on the
51 standard of care for the diagnosis or treatment of a condition
52 if the court determines that:
53 (1) the expert is trained in the diagnosis or treatment
54 of the condition, as applicable; and
55 (2) the defendant physician provided care for that
56 condition and such care was not within the physician's
57 specialty or competence.
58 (e) Otherwise adequate training, experience and knowledge.--
59 A court may waive the same specialty and board certification
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1 requirements for an expert testifying as to a standard of care
2 if the court determines that the expert possesses sufficient
3 training, experience and knowledge to provide the testimony as a
4 result of active involvement in or full-time teaching of
5 medicine in the applicable subspecialty or a related field of
6 medicine within the previous five-year time period.
7 Section 2239.4. Statute of repose.
8 (a) General rule.--Except as provided in subsection (b) or
9 (c), no cause of action asserting a medical professional
10 liability claim may be commenced after seven years from the date
11 of the alleged tort or breach of contract.
12 (b) Injuries caused by foreign object.--If the injury is or
13 was caused by a foreign object unintentionally left in the
14 individual's body, the limitation in subsection (a) shall not
15 apply.
16 (c) Injuries of minors.--No cause of action asserting a
17 medical professional liability claim may be commenced by or on
18 behalf of a minor after seven years from the date of the alleged
19 tort or breach of contract or after the minor attains the age of
20 20 years, whichever is later.
21 (d) Death or survival actions.--If the claim is brought
22 under 42 Pa.C.S. § 8301 (relating to death action) or 8302
23 (relating to survival action), the action must be commenced
24 within two years after the death in the absence of affirmative
25 misrepresentation or fraudulent concealment of the cause of
26 death.
27 (e) Applicability.--No cause of action barred prior to March
28 20, 2002, shall be revived by reason of the enactment of this
29 section.
30 (f) Definition.--For purposes of this section, a "minor" is
31 an individual who has not yet attained the age of 18 years.
32 Section 2239.5. Interbranch Commission on Venue.
33 (a) Declaration of policy.--The General Assembly further
34 recognizes that recent changes in the health care delivery
35 system have necessitated a revamping of the corporate structure
36 for various medical facilities and hospitals across this
37 Commonwealth. This has unduly expanded the reach and scope of
38 existing venue rules. Training of new physicians in many
39 geographic regions has also been severely restricted by the
40 resultant expansion of venue applicability rules. These
41 physicians and health care institutions are essential to
42 maintaining the high quality of health care that our citizens
43 have come to expect.
44 (b) Establishment of Interbranch Commission on Venue.--The
45 Interbranch Commission on Venue for actions relating to medical
46 professional liability is established as follows:
47 (1) The commission shall consist of the following
48 members:
49 (i) The Chief Justice of the Supreme Court or a
50 designee of the Chief Justice.
51 (ii) The chairperson of the Civil Procedural Rules
52 Committee, who shall serve as the chairperson of the
53 commission.
54 (iii) A judge of a court of common pleas appointed
55 by the Chief Justice.
56 (iv) The Attorney General or a designee of the
57 Attorney General.
58 (v) The General Counsel.
59 (vi) Two attorneys at law appointed by the Governor.
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1 (vii) Four individuals, one each appointed by the:
2 (A) President pro tempore of the Senate;
3 (B) Minority Leader of the Senate;
4 (C) Speaker of the House of Representatives; and
5 (D) Minority Leader of the House of
6 Representatives.
7 (2) The commission has the following functions:
8 (i) To review and analyze the issue of venue as it
9 relates to medical professional liability actions filed
10 in this Commonwealth.
11 (ii) To report, by September 1, 2002, to the General
12 Assembly and the Supreme Court on the results of the
13 review and analysis. The report shall include
14 recommendations for such legislative action or the
15 promulgation of rules of court on the issue of venue as
16 the commission shall determine to be appropriate.
17 (3) The commission shall expire September 1, 2002.
18 Section 2239.6. Remittitur.
19 (a) General rule.--In any case in which a defendant health
20 care provider challenges a verdict on grounds of excessiveness,
21 the trial court shall, in deciding a motion for remittitur,
22 consider evidence of the impact, if any, upon availability or
23 access to health care in the community if the defendant health
24 care provider is required to satisfy the verdict rendered by the
25 jury.
26 (b) Factors and evidence.--A trial court denying a motion
27 for remittitur shall specifically set forth the factors and
28 evidence it considered with respect to the impact of the verdict
29 upon availability or access to health care in the community.
30 (c) Abuse of discretion.--An appellate court reviewing a
31 lower court's denial of remittitur may find an abuse of
32 discretion if evidence of the impact of paying the verdict upon
33 availability and access to health care in the community has not
34 been adequately considered by the lower court.
35 (d) Limit of security.--A trial court or appellate court may
36 limit or reduce the amount of security that a defendant health
37 care provider must post to prevent execution if the court finds
38 that requiring a bond in excess of the limits of available
39 insurance coverage would effectively deny the right to appeal.
40 Section 2239.7. Ostensible agency.
41 (a) Vicarious liability.--A hospital may be held vicariously
42 liable for the acts of another health care provider through
43 principles of ostensible agency only if the evidence shows that:
44 (1) a reasonably prudent person in the patient's
45 position would be justified in the belief that the care in
46 question was being rendered by the hospital or its agents; or
47 (2) the care in question was advertised or otherwise
48 represented to the patient as care being rendered by the
49 hospital or its agents.
50 (b) Staff privileges.--Evidence that a physician holds staff
51 privileges at a hospital shall be insufficient to establish
52 vicarious liability through principles of ostensible agency
53 unless the claimant meets the requirements of subsection (a)(1)
54 or (2).
55 CHAPTER 7
56 INSURANCE
57 SUBCHAPTER A
58 PRELIMINARY PROVISIONS
59 Section 2251. Scope of chapter.
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1 This chapter relates to medical professional liability
2 insurance.
3 Section 2251.1. Definitions.
4 The following words and phrases when used in this chapter
5 shall have the meanings given to them in this section unless the
6 context clearly indicates otherwise:
7 "Basic insurance coverage." The limits of medical
8 professional liability insurance required under section 2252(d).
9 "Claims made." Medical professional liability insurance that
10 insures those claims made or reported during a period which is
11 insured and excludes coverage for a claim reported subsequent to
12 the period even if the claim resulted from an occurrence during
13 the period which was insured.
14 "Claims period." The period from September 1 to the
15 following August 31.
16 "Deficit." A joint underwriting association loss which
17 exceeds the sum of earned premiums collected by the joint
18 underwriting association and investment income.
19 "Department." The Insurance Department of the Commonwealth.
20 "Fund." The Medical Care Availability and Reduction of Error
21 (Mcare) Fund established in section 2252.1.
22 "Fund coverage limits." The coverage provided by the Medical
23 Care Availability and Reduction of Error (Mcare) Fund under
24 section 2252.1.
25 "Government." The Government of the United States, any
26 state, any political subdivision of a state, any instrumentality
27 of one or more states or any agency, subdivision or department
28 of any such government, including any corporation or other
29 association organized by a government for the execution of a
30 government program and subject to control by a government or any
31 corporation or agency established under an interstate compact or
32 international treaty.
33 "Health care business or practice." The number of patients
34 to whom health care services are rendered by a health care
35 provider within an annual period.
36 "Health care provider." A participating health care provider
37 or nonparticipating health care provider.
38 "Joint underwriting association." The Pennsylvania
39 Professional Liability Joint Underwriting Association
40 established in section 2253.
41 "Joint underwriting association loss." The sum of the
42 administrative expenses, taxes, losses, loss adjustment
43 expenses, unearned premiums and reserves, including reserves for
44 losses incurred and losses incurred but not reported, of the
45 joint underwriting association.
46 "Licensure authority." The State Board of Medicine, the
47 State Board of Osteopathic Medicine, the State Board of
48 Podiatry, the Department of Public Welfare and the Department of
49 Health.
50 "Medical professional liability insurance." Insurance
51 against liability on the part of a health care provider arising
52 out of any tort or breach of contract causing injury or death
53 resulting from the furnishing of medical services which were or
54 should have been provided.
55 "Nonparticipating health care provider." A health care
56 provider as defined in section 2203 that conducts 20% or less of
57 its health care business or practice within this Commonwealth.
58 "Participating health care provider." A health care provider
59 as defined in section 2203 that conducts more than 20% of its
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1 health care business or practice within this Commonwealth or a
2 nonparticipating health care provider who chooses to participate
3 in the fund.
4 "Prevailing primary premium." The schedule of occurrence
5 rates approved by the commissioner for the joint underwriting
6 association.
7 SUBCHAPTER B
8 FUND
9 Section 2252. Medical professional liability insurance.
10 (a) Requirement.--A health care provider providing health
11 care services in this Commonwealth shall:
12 (1) purchase medical professional liability insurance
13 from an insurer which is licensed or approved by the
14 department; or
15 (2) provide self-insurance.
16 (b) Proof of insurance.--A health care provider required by
17 subsection (a) to purchase medical professional liability
18 insurance or provide self-insurance shall submit proof of
19 insurance or self-insurance to the department within 60 days of
20 the policy being issued.
21 (c) Failure to provide proof of insurance.--If a health care
22 provider fails to submit the proof of insurance or self-
23 insurance required by subsection (b), the department shall,
24 after providing the health care provider with notice, notify the
25 health care provider's licensing authority. A health care
26 provider's license shall be suspended or revoked by its
27 licensure board or agency if the health care provider fails to
28 comply with any of the provisions of this chapter.
29 (d) Basic coverage limits.--A health care provider shall
30 insure or self-insure medical professional liability in
31 accordance with the following:
32 (1) For policies issued or renewed in the calendar year
33 2002, the basic insurance coverage shall be:
34 (i) $500,000 per occurrence or claim and $1,500,000
35 per annual aggregate for a health care provider who
36 conducts more than 50% of its health care business or
37 practice within this Commonwealth and that is not a
38 hospital.
39 (ii) $500,000 per occurrence or claim and $1,500,000
40 per annual aggregate for a health care provider who
41 conducts 50% or less of its health care business or
42 practice within this Commonwealth.
43 (iii) $500,000 per occurrence or claim and
44 $2,500,000 per annual aggregate for a hospital.
45 (2) For policies issued or renewed in the calendar years
46 2003, 2004 and 2005, the basic insurance coverage shall be:
47 (i) $500,000 per occurrence or claim and $1,500,000
48 per annual aggregate for a participating health care
49 provider that is not a hospital.
50 (ii) $1,000,000 per occurrence or claim and
51 $3,000,000 per annual aggregate for a nonparticipating
52 health care provider.
53 (iii) $500,000 per occurrence or claim and
54 $2,500,000 per annual aggregate for a hospital.
55 (3) Unless the commissioner finds pursuant to section
56 2254.4(b) that additional basic insurance coverage capacity
57 is not available, for policies issued or renewed in calendar
58 year 2009 and each year thereafter subject to paragraph (4),
59 the basic insurance coverage as determined by the
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1 commissioner shall be:
2 (i) Up to $750,000 per occurrence or claim and
3 $2,250,000 per annual aggregate for a participating
4 health care provider that is not a hospital.
5 (ii) Up to $1,000,000 per occurrence or claim and
6 $3,000,000 per annual aggregate for a nonparticipating
7 health care provider.
8 (iii) Up to $750,000 per occurrence or claim and
9 $3,750,000 per annual aggregate for a hospital.
10 If the commissioner finds pursuant to section 2254.4(b) that
11 additional basic insurance coverage capacity is not
12 available, the basic insurance coverage requirements shall
13 remain at the level required by paragraph (2); and the
14 commissioner shall conduct a study every year until the
15 commissioner finds that additional basic insurance coverage
16 capacity is available, at which time the commissioner shall
17 increase the required basic insurance coverage in accordance
18 with this paragraph.
19 (4) Unless the commissioner finds pursuant to section
20 2254.4(b) that additional basic insurance coverage capacity
21 is not available, for policies issued or renewed two years
22 after the increase in coverage limits required by paragraph
23 (3) and for each year thereafter, the basic insurance
24 coverage as determined by the commissioner shall be:
25 (i) Up to $1,000,000 per occurrence or claim and
26 $3,000,000 per annual aggregate for a participating
27 health care provider that is not a hospital.
28 (ii) Up to $1,000,000 per occurrence or claim and
29 $3,000,000 per annual aggregate for a nonparticipating
30 health care provider.
31 (iii) Up to $1,000,000 per occurrence or claim and
32 $4,500,000 per annual aggregate for a hospital.
33 If the commissioner finds pursuant to section 2254.4(b) that
34 additional basic insurance coverage capacity is not
35 available, the basic insurance coverage requirements shall
36 remain at the level required by paragraph (3); and the
37 commissioner shall conduct a study every year until the
38 commissioner finds that additional basic insurance coverage
39 capacity is available, at which time the commissioner shall
40 increase the required basic insurance coverage in accordance
41 with this paragraph.
42 (5) The amount of basic insurance coverage per
43 occurrence or claim under paragraph (3) or (4) shall be no
44 less than $500,000 and shall be set in $50,000 increments.
45 (6) In no event shall the total coverage for basic
46 primary insurance and the fund, per occurrence or claim, be
47 less than $1,000,000 or less than $3,000,000 per annual
48 aggregate for a participating or nonparticipating health care
49 provider, except hospitals which have total coverage limits
50 of not less than $1,000,000 per occurrence or less than
51 $4,500,000 per annual aggregate.
52 (e) Fund participation.--A participating health care
53 provider shall be required to participate in the fund.
54 (f) Self-insurance.--
55 (1) If a health care provider self-insures its medical
56 professional liability, the health care provider shall submit
57 its self-insurance plan, such additional information as the
58 department may require and the examination fee to the
59 department for approval.
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1 (2) The department shall approve the plan if it
2 determines that the plan constitutes protection equivalent to
3 the insurance required of a health care provider under
4 subsection (d).
5 (g) Basic insurance liability.--
6 (1) An insurer providing medical professional liability
7 insurance shall not be liable for payment of a claim against
8 a health care provider for any loss or damages awarded in a
9 medical professional liability action in excess of the basic
10 insurance coverage required by subsection (d) unless the
11 health care provider's medical professional liability
12 insurance policy or self-insurance plan provides for a higher
13 limit.
14 (2) If a claim exceeds the limits of a participating
15 health care provider's basic insurance coverage or self-
16 insurance plan, the fund shall be responsible for payment of
17 the claim against the participating health care provider up
18 to the fund liability limits.
19 (h) Excess insurance.--
20 (1) No insurer providing medical professional liability
21 insurance with liability limits in excess of the fund's
22 liability limits to a participating health care provider
23 shall be liable for payment of a claim against the
24 participating health care provider for a loss or damages in a
25 medical professional liability action except the losses and
26 damages in excess of the fund coverage limits.
27 (2) No insurer providing medical professional liability
28 insurance with liability limits in excess of the fund's
29 liability limits to a participating health care provider
30 shall be liable for any loss resulting from the insolvency or
31 dissolution of the fund.
32 (i) Governmental entities.--A governmental entity may
33 satisfy its obligations under this chapter, as well as the
34 obligations of its employees to the extent of their employment,
35 by either purchasing medical professional liability insurance or
36 assuming an obligation as a self-insurer, and paying the
37 assessments under this chapter.
38 (j) Exemptions.--The following participating health care
39 providers shall be exempt from this chapter:
40 (1) A physician who exclusively practices the specialty
41 of forensic pathology.
42 (2) A participating health care provider who is a member
43 of the Pennsylvania military forces while in the performance
44 of the member's assigned duty in the Pennsylvania military
45 forces under orders.
46 (3) A retired licensed participating health care
47 provider who provides care only to the provider or the
48 provider's immediate family members.
49 Section 2252.1. Medical Care Availability and Reduction of
50 Error (Mcare) Fund.
51 (a) Establishment.--There is hereby established within the
52 State Treasury a special fund to be known as the Medical Care
53 Availability and Reduction of Error (Mcare) Fund. Money in the
54 fund shall be used to pay claims against participating health
55 care providers for losses or damages awarded in medical
56 professional liability actions against them in excess of the
57 basic insurance coverage required by section 2252(d),
58 liabilities transferred in accordance with subsection (b) and
59 for the administration of the fund.
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1 (b) Transfer of assets and liabilities.--
2 (1) (i) The money in the Medical Professional Liability
3 Catastrophe Loss Fund established under section 701(d) of
4 the former act of October 15, 1975 (P.L.390, No.111),
5 known as the Health Care Services Malpractice Act, is
6 transferred to the fund.
7 (ii) The rights of the Medical Professional
8 Liability Catastrophe Loss Fund established under section
9 701(d) of the former Health Care Services Malpractice Act
10 are transferred to and assumed by the fund.
11 (2) The liabilities and obligations of the Medical
12 Professional Liability Catastrophe Loss Fund established
13 under section 701(d) of the former Health Care Services
14 Malpractice Act are transferred to and assumed by the fund.
15 (c) Fund liability limits.--
16 (1) For calendar year 2002, the limit of liability of
17 the fund created in section 701(d) of the former Health Care
18 Services Malpractice Act for each health care provider that
19 conducts more than 50% of its health care business or
20 practice within this Commonwealth and for each hospital shall
21 be $700,000 for each occurrence and $2,100,000 per annual
22 aggregate.
23 (2) The limit of liability of the fund for each
24 participating health care provider shall be as follows:
25 (i) For calendar year 2003 and each year thereafter,
26 the limit of liability of the fund shall be $500,000 for
27 each occurrence and $1,500,000 per annual aggregate.
28 (ii) If the basic insurance coverage requirement is
29 increased in accordance with section 2252(d)(3) or (4)
30 and, notwithstanding subparagraph (i), for each calendar
31 year following the increase in the basic insurance
32 coverage requirement, the limit of liability of the fund
33 shall be:
34 (A) except as set forth in clause (B),
35 $1,000,000 per occurrence and $3,000 per annual
36 aggregate, minus the amount the commissioner
37 determines for basic insurance coverage under section
38 2252(d)(3) or (4); or
39 (B) for hospitals, $1,000,000 per occurrence and
40 $4,500,000 per annual aggregate, minus the amount the
41 commissioner determines for basic insurance coverage
42 under section 2252(d)(3) or (4).
43 (d) Assessments.--
44 (1) For calendar year 2003 and for each year thereafter,
45 the fund shall be funded by an assessment on each
46 participating health care provider. Assessments shall be
47 levied by the department on or after January 1 of each year.
48 The assessment shall be based on the prevailing primary
49 premium for each participating health care provider and
50 shall, in the aggregate, produce an amount sufficient to do
51 all of the following:
52 (i) Reimburse the fund for the payment of reported
53 claims which became final during the preceding claims
54 period.
55 (ii) Pay expenses of the fund incurred during the
56 preceding claims period.
57 (iii) Pay principal and interest on moneys
58 transferred into the fund in accordance with section
59 2252.2(c).
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1 (iv) Provide a reserve that shall be 10% of the sum
2 of subparagraphs (i), (ii) and (iii).
3 (2) The department shall notify all basic insurance
4 coverage insurers and self-insured participating health care
5 providers of the assessment by November 1 for the succeeding
6 calendar year.
7 (3) Any appeal of the assessment shall be filed with the
8 department.
9 (e) Discount on surcharges and assessments.--
10 (1) For calendar year 2002, the department shall
11 discount the aggregate surcharge imposed under section
12 701(e)(1) of the former Health Care Services Malpractice Act
13 by 5% of the aggregate surcharge imposed under that section
14 for calendar year 2001 in accordance with the following:
15 (i) Fifty percent of the aggregate discount shall be
16 granted equally to hospitals and to participating health
17 care providers that were surcharged as members of one of
18 the four highest rate classes of the prevailing primary
19 premium.
20 (ii) Notwithstanding subparagraph (i), 50% of the
21 aggregate discount shall be granted equally to all
22 participating health care providers.
23 (iii) The department shall issue a credit to a
24 participating health care provider who, prior to March
25 20, 2002, has paid the surcharge imposed under section
26 701(e)(1) of the former Health Care Services Malpractice
27 Act for calendar year 2002 prior to March 20, 2002.
28 (2) For calendar years 2003 and 2004, the department
29 shall discount the aggregate assessment imposed under
30 subsection (d) for each calendar year by 10% of the aggregate
31 surcharge imposed under section 701(e)(1) of the former
32 Health Care Services Malpractice Act for calendar year 2001
33 in accordance with the following:
34 (i) Fifty percent of the aggregate discount shall be
35 granted equally to hospitals and to participating health
36 care providers that were assessed as members of one of
37 the four highest rate classes of the prevailing primary
38 premium.
39 (ii) Notwithstanding subparagraph (i), 50% of the
40 aggregate discount shall be granted equally to all
41 participating health care providers.
42 (3) For calendar years 2005 and thereafter, if the basic
43 insurance coverage requirement is increased in accordance
44 with section 2252(d)(3) or (4), the department may discount
45 the aggregate assessment imposed under subsection (d) by an
46 amount not to exceed the aggregate sum to be deposited in the
47 fund in accordance with subsection (m).
48 (f) Updated rates.--The joint underwriting association shall
49 file updated rates for all health care providers with the
50 commissioner by May 1 of each year. The department shall review
51 and may adjust the prevailing primary premium in line with any
52 applicable changes which have been approved by the commissioner.
53 (g) Additional adjustments of the prevailing primary
54 premium.--The department shall adjust the applicable prevailing
55 primary premium of each participating health care provider in
56 accordance with the following:
57 (1) The applicable prevailing primary premium of a
58 participating health care provider which is not a hospital
59 may be adjusted through an increase in the individual
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1 participating health care provider's prevailing primary
2 premium not to exceed 20%. Any adjustment shall be based upon
3 the frequency of claims paid by the fund on behalf of the
4 individual participating health care provider during the past
5 five most recent claims periods and shall be in accordance
6 with the following:
7 (i) If three claims have been paid during the past
8 five most recent claims periods by the fund, a 10%
9 increase shall be charged.
10 (ii) If four or more claims have been paid during
11 the past five most recent claims periods by the fund, a
12 20% increase shall be charged.
13 (2) The applicable prevailing primary premium of a
14 participating health care provider which is not a hospital
15 and which has not had an adjustment under paragraph (1) may
16 be adjusted through an increase in the individual
17 participating health care provider's prevailing primary
18 premium not to exceed 20%. Any adjustment shall be based upon
19 the severity of at least two claims paid by the fund on
20 behalf of the individual participating health care provider
21 during the past five most recent claims periods.
22 (3) The applicable prevailing primary premium of a
23 participating health care provider not engaged in direct
24 clinical practice on a full-time basis may be adjusted
25 through a decrease in the individual participating health
26 care provider's prevailing primary premium not to exceed 10%.
27 Any adjustment shall be based upon the lower risk associated
28 with the less-than-full-time direct clinical practice.
29 (4) The applicable prevailing primary premium of a
30 hospital may be adjusted through an increase or decrease in
31 the individual hospital's prevailing primary premium not to
32 exceed 20%. Any adjustment shall be based upon the frequency
33 and severity of claims paid by the fund on behalf of other
34 hospitals of similar class, size, risk and kind within the
35 same defined region during the past five most recent claims
36 periods.
37 (h) Self-insured health care providers.--A participating
38 health care provider that has an approved self-insurance plan
39 shall be assessed an amount equal to the assessment imposed on a
40 participating health care provider of like class, size, risk and
41 kind as determined by the department.
42 (i) Change in basic insurance coverage.--If a participating
43 health care provider changes the term of its medical
44 professional liability insurance coverage, the assessment shall
45 be calculated on an annual basis and shall reflect the
46 assessment percentages in effect for the period over which the
47 policies are in effect.
48 (j) Payment of claims.--Claims which became final during the
49 preceding claims period shall be paid on or before December 31
50 following the August 31 on which they became final.
51 (k) Termination.--Upon satisfaction of all liabilities of
52 the fund, the fund shall terminate. Any balance remaining in the
53 fund upon such termination shall be returned by the department
54 to the participating health care providers who participated in
55 the fund in proportion to their assessments in the preceding
56 calendar year.
57 (l) Sole and exclusive source of funding.--Except as
58 provided in subsection (m), the surcharges imposed under section
59 701(e)(1) of the former Health Care Services Malpractice Act and
HB2098A05967 - 36 -
1 assessments on participating health care providers and any
2 income realized by investment or reinvestment shall constitute
3 the sole and exclusive sources of funding for the fund. Nothing
4 in this subsection shall prohibit the fund from accepting
5 contributions from nongovernmental sources. A claim against or a
6 liability of the fund shall not be deemed to constitute a debt
7 or liability of the Commonwealth or a charge against the General
8 Fund.
9 (m) Supplemental funding.--Notwithstanding the provisions of
10 75 Pa.C.S. § 6506(b) (relating to surcharge) to the contrary,
11 beginning January 1, 2004, and for a period of nine calendar
12 years thereafter, all surcharges levied and collected under 75
13 Pa.C.S. § 6506(a) by any division of the unified judicial system
14 shall be remitted to the Commonwealth for deposit in the Medical
15 Care Availability and Reduction of Error (Mcare) Fund. These
16 funds shall be used to reduce surcharges and assessments in
17 accordance with subsection (e). Beginning January 1, 2014, and
18 each year thereafter, the surcharges levied and collected under
19 75 Pa.C.S. § 6506(a) shall be deposited into the General Fund.
20 (n) Waiver of right to consent to settlement.--A
21 participating health care provider may maintain the right to
22 consent to a settlement in a basic insurance coverage policy for
23 medical professional liability insurance upon the payment of an
24 additional premium amount.
25 Section 2252.2. Administration of fund.
26 (a) General rule.--The fund shall be administered by the
27 department. The department shall contract with an entity or
28 entities for the administration of claims against the fund in
29 accordance with 62 Pa.C.S. (relating to procurement), and, to
30 the fullest extent practicable, the department shall contract
31 with entities that:
32 (1) Are not writing, underwriting or brokering medical
33 professional liability insurance for participating health
34 care providers; however, the department may contract with a
35 subsidiary or affiliate of any writer, underwriter or broker
36 of medical professional liability insurance.
37 (2) Are not trade organizations or associations
38 representing the interests of participating health care
39 providers in this Commonwealth.
40 (3) Have demonstrable knowledge of and experience in the
41 handling and adjusting of professional liability or other
42 catastrophic claims.
43 (4) Have developed, instituted and utilized best
44 practice standards and systems for the handling and adjusting
45 of professional liability or other catastrophic claims.
46 (5) Have demonstrable knowledge of and experience with
47 the professional liability marketplace and the judicial
48 systems of this Commonwealth.
49 (b) Reinsurance.--The department may purchase, on behalf of
50 and in the name of the fund, as much insurance or reinsurance as
51 is necessary to preserve the fund or retire the liabilities of
52 the fund.
53 (c) Transfers.--The Governor may transfer to the fund from
54 the Catastrophic Loss Benefits Continuation Fund, or such other
55 funds as may be appropriate, such money as is necessary in order
56 to pay the liabilities of the fund until sufficient revenues are
57 realized by the fund. Any transfer made under this subsection
58 shall be repaid with interest pursuant to section 2 of the act
59 of August 22, 1961 (P.L.1049, No.479), entitled "An act
HB2098A05967 - 37 -
1 authorizing the State Treasurer under certain conditions to
2 transfer sums of money between the General Fund and certain
3 funds and subsequent transfers of equal sums between such funds,
4 and making appropriations necessary to effect such transfers."
5 (d) Confidentiality.--Information provided to the department
6 or maintained by the department regarding a claim or adjustments
7 to an individual participating health care provider's assessment
8 shall be confidential, notwithstanding the act of June 21, 1957
9 (P.L.390, No.212), referred to as the Right-to-Know Law, or 65
10 Pa.C.S. Ch. 7 (relating to open meetings).
11 Section 2252.3. Medical professional liability claims.
12 (a) Notification.--A basic coverage insurer or self-insured
13 participating health care provider shall promptly notify the
14 department in writing of any medical professional liability
15 claim.
16 (b) Failure to notify.--If a basic coverage insurer or self-
17 insured participating health care provider fails to notify the
18 department as required under subsection (a) and the department
19 has been prejudiced by the failure of notice, the insurer or
20 provider shall be solely responsible for the payment of the
21 entire award or verdict that results from the medical
22 professional liability claim.
23 (c) Defense.--A basic coverage insurer or self-insured
24 participating health care provider shall provide a defense to a
25 medical professional liability claim, including a defense of any
26 potential liability of the fund, except as provided for in
27 section 2252.4. The department may join in the defense and be
28 represented by counsel.
29 (d) Responsibilities.--In accordance with section 2252.2,
30 the department may defend, litigate, settle or compromise any
31 medical professional liability claim payable by the fund.
32 (e) Releases.--In the event that a basic coverage insurer or
33 self-insured participating health care provider enters into a
34 settlement with a claimant to the full extent of its liability
35 as provided in this chapter, it may obtain a release from the
36 claimant to the extent of its payment, which payment shall have
37 no effect upon any claim against the fund or its duty to
38 continue the defense of the claim.
39 (f) Adjustment.--The department may adjust claims.
40 (g) Mediation.--Upon the request of a party to a medical
41 professional liability claim within the fund coverage limits,
42 the department may provide for a mediator in instances where
43 multiple carriers disagree on the disposition or settlement of a
44 case. Upon the consent of all parties, the mediation shall be
45 binding. Proceedings conducted and information provided in
46 accordance with this section shall be confidential and shall not
47 be considered public information subject to disclosure under the
48 act of June 21, 1957 (P.L.390, No.212), referred to as the
49 Right-to-Know Law, or 65 Pa.C.S. Ch. 7 (relating to open
50 meetings).
51 (h) Delay damages and postjudgment interest.--Delay damages
52 and postjudgment interest applicable to the fund's liability on
53 a medical professional liability claim shall be paid by the fund
54 and shall not be charged against the participating health care
55 provider's annual aggregate limits. The basic coverage insurer
56 or self-insured participating health care provider shall be
57 responsible for its proportionate share of delay damages and
58 postjudgment interest.
59 Section 2252.4. Extended claims.
HB2098A05967 - 38 -
1 (a) General rule.--If a medical professional liability claim
2 against a health care provider who was required to participate
3 in the Medical Professional Liability Catastrophe Loss Fund
4 under section 701(d) of the act of October 15, 1975 (P.L.390,
5 No.111), known as the former Health Care Services Malpractice
6 Act, is made more than four years after the breach of contract
7 or tort occurred and if the claim is filed within the applicable
8 statute of limitations, the claim shall be defended by the
9 department if the department received a written request for
10 indemnity and defense within 180 days of the date on which
11 notice of the claim is first given to the participating health
12 care provider or its insurer. Where multiple treatments or
13 consultations took place less than four years before the date on
14 which the health care provider or its insurer received notice of
15 the claim, the claim shall be deemed for purposes of this
16 section to have occurred less than four years prior to the date
17 of notice and shall be defended by the insurer in accordance
18 with this chapter.
19 (b) Payment.--If a health care provider is found liable for
20 a claim defended by the department in accordance with subsection
21 (a), the claim shall be paid by the fund. The limit of liability
22 of the fund for a claim defended by the department under
23 subsection (a) shall be $1,000,000 per occurrence.
24 (c) Concealment.--If a claim is defended by the department
25 under subsection (a) or paid under subsection (b) and the claim
26 is made after four years because of the willful concealment by
27 the health care provider or its insurer, the fund shall have the
28 right to full indemnity, including the department's defense
29 costs, from the health care provider or its insurer.
30 (d) Extended coverage required.--Notwithstanding subsections
31 (a), (b) and (c), all medical professional liability insurance
32 policies issued on or after January 1, 2006, shall provide
33 indemnity and defense for claims asserted against a health care
34 provider for a breach of contract or tort which occurs four or
35 more years after the breach of contract or tort occurred and
36 after December 31, 2005.
37 Section 2252.5. Podiatrist liability.
38 Within two years of the effective date of Chapter 7 of the
39 act of March 20, 2002 (P.L.154, No.13), known as the Medical
40 Care Availability and Reduction of Error (Mcare) Act, the
41 department shall calculate the amount necessary to arrange for
42 the separate retirement of the fund's liabilities associated
43 with podiatrists. Any arrangement shall be on terms and
44 conditions proportionate to the individual liability of the
45 class of health care provider. The arrangement may result in
46 assessments for podiatrists different from the assessments for
47 other health care providers. Upon satisfaction of the
48 arrangement, podiatrists shall not be required to contribute to
49 or be entitled to participate in the fund. In cases where the
50 class rejects an arrangement, the department shall present to
51 the provider class new term arrangements at least once in every
52 two-year period. All costs and expenses associated with the
53 completion and implementation of the arrangement shall be paid
54 by podiatrists and may be charged in the form of an addition to
55 the assessment.
56 SUBCHAPTER C
57 JOINT UNDERWRITING ASSOCIATION
58 Section 2253. Joint underwriting association.
59 (a) Establishment.--There is established a nonprofit joint
HB2098A05967 - 39 -
1 underwriting association to be known as the Pennsylvania
2 Professional Liability Joint Underwriting Association. The joint
3 underwriting association shall consist of all insurers
4 authorized to write insurance in accordance with section
5 202(c)(4) and (11) and shall be supervised by the department.
6 The powers and duties of the joint underwriting association
7 shall be vested in and exercised by a board of directors.
8 (b) Duties.--The joint underwriting association shall do all
9 of the following:
10 (1) Submit a plan of operation to the commissioner for
11 approval.
12 (2) Submit rates and any rate modification to the
13 department for approval in accordance with the act of June
14 11, 1947 (P.L.538, No.246), known as The Casualty and Surety
15 Rate Regulatory Act.
16 (3) Offer medical professional liability insurance to
17 health care providers in accordance with section 2253.1.
18 (4) File with the department the information required in
19 section 2252.1.
20 (c) Liabilities.--A claim against or a liability of the
21 joint underwriting association shall not be deemed to constitute
22 a debt or liability of the Commonwealth or a charge against the
23 General Fund.
24 Section 2253.1. Medical professional liability insurance.
25 (a) Insurance.--The joint underwriting association shall
26 offer medical professional liability insurance to health care
27 providers and professional corporations, professional
28 associations and partnerships which are entirely owned by health
29 care providers who cannot conveniently obtain medical
30 professional liability insurance through ordinary methods at
31 rates not in excess of those applicable to similarly situated
32 health care providers, professional corporations, professional
33 associations or partnerships.
34 (b) Requirements.--The joint underwriting association shall
35 ensure that the medical professional liability insurance it
36 offers does all of the following:
37 (1) Is conveniently and expeditiously available to all
38 health care providers required to be insured under section
39 2252.
40 (2) Is subject only to the payment or provisions for
41 payment of the premium.
42 (3) Provides reasonable means for the health care
43 providers it insures to transfer to the ordinary insurance
44 market.
45 (4) Provides sufficient coverage for a health care
46 provider to satisfy its insurance requirements under section
47 2252 on reasonable and not unfairly discriminatory terms.
48 (5) Permits a health care provider to finance its
49 premium or allows installment payment of premiums subject to
50 customary terms and conditions.
51 Section 2253.2. Deficit.
52 (a) Filing.--In the event the joint underwriting association
53 experiences a deficit in any calendar year, the board of
54 directors shall file with the commissioner the deficit.
55 (b) Approval.--Within 30 days of receipt of the filing, the
56 commissioner shall approve or deny the filing. If approved, the
57 joint underwriting association is authorized to borrow funds
58 sufficient to satisfy the deficit.
59 (c) Rate filing.--Within 30 days of receiving approval of
HB2098A05967 - 40 -
1 its filing in accordance with subsection (b), the joint
2 underwriting association shall file a rate filing with the
3 department. The commissioner shall approve the filing if the
4 premiums generate sufficient income for the joint underwriting
5 association to avoid a deficit during the following 12 months
6 and to repay principal and interest on the money borrowed in
7 accordance with subsection (b).
8 SUBCHAPTER D
9 REGULATION OF MEDICAL PROFESSIONAL
10 LIABILITY INSURANCE
11 Section 2254. Approval.
12 In order for an insurer to issue a policy of medical
13 professional liability insurance to a health care provider or to
14 a professional corporation, professional association or
15 partnership which is entirely owned by health care providers,
16 the insurer must be authorized to write medical professional
17 liability insurance in accordance with this act.
18 Section 2254.1. Approval of policies on "claims made" basis.
19 The commissioner shall not approve a medical professional
20 liability insurance policy written on a "claims made" basis by
21 any insurer doing business in this Commonwealth unless the
22 insurer shall guarantee to the commissioner the continued
23 availability of suitable liability protection for a health care
24 provider subsequent to the discontinuance of professional
25 practice by the health care provider or the termination of the
26 insurance policy by the insurer or the health care provider for
27 so long as there is a reasonable probability of a claim for
28 injury for which the health care provider may be held liable.
29 Section 2254.2. Reports to commissioner and claims information.
30 (a) Duty to report.--By October 15 of each year, basic
31 insurance coverage insurers and self-insured participating
32 health care providers shall report to the department the claims
33 information specified in subsection (b).
34 (b) Department report.--Sixty days after the end of each
35 calendar year, the department shall prepare a report. The report
36 shall contain the total amount of claims paid and expenses
37 incurred during the preceding calendar year, the total amount of
38 reserve set aside for future claims, the date and place in which
39 each claim arose, the amounts paid, if any, and the disposition
40 of each claim, judgment of court, settlement or otherwise. For
41 final claims at the end of any calendar year, the report shall
42 include details by basic insurance coverage insurers and self-
43 insured participating health care providers of the amount of
44 assessment collected, the number of reimbursements paid and the
45 amount of reimbursements paid.
46 (c) Submission of report.--A copy of the report prepared
47 pursuant to this section shall be submitted to the chairman and
48 minority chairman of the Banking and Insurance Committee of the
49 Senate and the chairman and minority chairman of the Insurance
50 Committee of the House of Representatives.
51 Section 2254.3. Professional corporations, professional
52 associations and partnerships.
53 A professional corporation, professional association or
54 partnership which is entirely owned by health care providers and
55 which elects to purchase basic insurance coverage in accordance
56 with section 2252 from the joint underwriting association or
57 from an insurer licensed or approved by the department shall be
58 required to participate in the fund and, upon payment of the
59 assessment required by section 2252.1, be entitled to coverage
HB2098A05967 - 41 -
1 from the fund.
2 Section 2254.4. Actuarial data.
3 (a) Initial study.--The following shall apply:
4 (1) No later than April 1, 2005, each insurer providing
5 medical professional liability insurance in this Commonwealth
6 shall file loss data as required by the commissioner. For
7 failure to comply, the commissioner shall impose an
8 administrative penalty of $1,000 for every day that this data
9 is not provided in accordance with this paragraph.
10 (2) By July 1, 2005, the commissioner shall conduct a
11 study regarding the availability of additional basic
12 insurance coverage capacity. The study shall include an
13 estimate of the total change in medical professional
14 liability insurance loss-cost resulting from implementation
15 of this subarticle prepared by an independent actuary. The
16 fee for the independent actuary shall be borne by the fund.
17 In developing the estimate, the independent actuary shall
18 consider all of the following:
19 (i) The most recent accident year and ratemaking
20 data available.
21 (ii) Any other relevant factors within or outside
22 this Commonwealth in accordance with sound actuarial
23 principles.
24 (b) Additional study.--The following shall apply:
25 (1) Pursuant to section 2252(d)(3) or (4), the
26 commissioner shall conduct a study regarding the availability
27 of additional basic insurance overage capacity as set forth
28 in this subsection. In order for the commissioner to make a
29 final determination regarding the increase of the basic
30 insurance coverage requirement in accordance with section
31 2252(d)(3) or (4), each insurer providing medical
32 professional liability insurance in this Commonwealth shall
33 file loss data with the commissioner upon request. For
34 failure to comply, the commissioner shall impose an
35 administrative penalty of $1,000 for every day that this data
36 is not provided in accordance with this paragraph.
37 (2) Three months following the request made under
38 paragraph (1), the commissioner shall conduct a study
39 regarding the availability of additional basic insurance
40 coverage capacity. The study shall include an estimate of the
41 total change in medical professional liability insurance
42 loss-cost resulting from implementation of this subarticle
43 prepared by an independent actuary. The fee for the
44 independent actuary shall be borne by the fund. In developing
45 the estimate, the independent actuary shall consider all of
46 the following:
47 (i) The most recent accident year and ratemaking
48 data available.
49 (ii) Any other relevant factors, including economic
50 considerations, within or outside this Commonwealth in
51 accordance with sound actuarial principles.
52 (3) Upon review of the study by the commissioner, a
53 final determination shall be issued by the commissioner by
54 July 1, 2008, and by July 1 of each year thereafter if a
55 study is required pursuant to section 2252(d)(3) or (4).
56 Section 2254.5. Mandatory reporting.
57 (a) General provisions.--Each medical professional liability
58 insurer and each self-insured health care provider, including
59 the fund established by this chapter, which makes payment in
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1 settlement or in partial settlement of or in satisfaction of a
2 judgment in a medical professional liability action or claim
3 shall provide to the appropriate licensure board a true and
4 correct copy of the report required to be filed with the Federal
5 Government by section 421 of the Health Care Quality Improvement
6 Act of 1986 (Public Law 99-660, 42 U.S.C. § 11131). The copy of
7 the report required by this section shall be filed
8 simultaneously with the report required by section 421 of the
9 Health Care Quality Improvement Act of 1986. The department
10 shall monitor and enforce compliance with this section. The
11 Bureau of Professional and Occupational Affairs and the
12 licensure boards shall have access to information pertaining to
13 compliance.
14 (b) Immunity.--A medical professional liability insurer or
15 person who reports under subsection (a) in good faith and
16 without malice shall be immune from civil or criminal liability
17 arising from the report.
18 (c) Public information.--Information received under this
19 section shall not be considered public information for the
20 purposes of the act of June 21, 1957 (P.L.390, No.212), referred
21 to as the Right-to-Know Law, or 65 Pa.C.S. Ch. 7 (relating to
22 open meetings) until used in a formal disciplinary proceeding.
23 Section 2254.6. Cancellation of insurance policy.
24 A termination of a medical professional liability insurance
25 policy by cancellation, except for suspension or revocation of
26 the insured's license or for reason of nonpayment of premium, is
27 not effective against the insured unless notice of cancellation
28 was given within 60 days after the issuance of the policy to the
29 insured, and no cancellation shall take effect unless a written
30 notice stating the reasons for the cancellation and the date and
31 time upon which the termination becomes effective has been
32 received by the commissioner. Mailing of the notice to the
33 commissioner at the commissioner's principal office address
34 shall constitute notice to the commissioner.
35 Section 2254.7. Regulations.
36 The commissioner may promulgate regulations to implement and
37 administer this chapter.
38 SUBCHAPTER E
39 MEDICAL CARE AVAILABILITY AND REDUCTION OF ERROR
40 (MCARE) RESERVE FUND
41 Section 2254.10. Establishment.
42 There is established within the State Treasury a special fund
43 to be known as the Medical Care Availability and Reduction of
44 Error (Mcare) Reserve Fund.
45 Section 2254.11. Allocation.
46 Money in the Medical Care Availability and Reduction of Error
47 (Mcare) Reserve Fund shall be allocated annually as follows:
48 (1) Twenty-five percent of the total amount in the
49 Medical Care Availability and Reduction of Error (Mcare)
50 Reserve Fund, up to a maximum amount of $25,000,000, shall be
51 transferred to the Patient Safety Trust Fund for use by the
52 Department of Public Welfare for implementing section 407.
53 (2) Twenty-five percent of the total amount in the
54 Medical Care Availability and Reduction of Error (Mcare)
55 Reserve Fund, up to a maximum amount of $25,000,000, shall be
56 transferred to the Medical Safety Automation Fund.
57 (3) All other funds in the Medical Care Availability and
58 Reduction of Error (Mcare) Reserve Fund shall remain in the
59 Medical Care Availability and Reduction of Error (Mcare)
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1 Reserve Fund for the sole purpose of reducing the unfunded
2 liability of the fund.
3 SUBCHAPTER F
4 MEDICAL SAFETY AUTOMATION FUND
5 Section 2254.20. Medical Safety Automation Fund established.
6 There is established within the State Treasury a special fund
7 to be known as the Medical Safety Automation Fund. No money in
8 the Medical Safety Automation Fund shall be used until
9 legislation is enacted for the purpose of providing medical
10 safety automation system grants to health care providers under
11 the act of July 19, 1979 (P.L.130, No.48), known as the Health
12 Care Facilities Act, a group practice or a community-based
13 health care provider.
14 CHAPTER 9
15 ADMINISTRATIVE PROVISIONS
16 Section 2261. Scope of chapter.
17 (a) General rule.--
18 (1) Except as set forth in subsection (b), this chapter
19 is in pari materia with:
20 (i) the act of October 5, 1978 (P.L.1109, No.261),
21 known as the Osteopathic Medical Practice Act; and
22 (ii) the act of December 20, 1985 (P.L.457, No.112),
23 known as the Medical Practice Act of 1985.
24 (2) No duplication of procedure is required between this
25 chapter and either:
26 (i) the Osteopathic Medical Practice Act; or
27 (ii) the Medical Practice Act of 1985.
28 (b) Conflict.--This chapter shall prevail if there is a
29 conflict between this chapter and either:
30 (1) the Osteopathic Medical Practice Act; or
31 (2) the Medical Practice Act of 1985.
32 Section 2262. Definitions.
33 The following words and phrases when used in this chapter
34 shall have the meanings given to them in this section unless the
35 context clearly indicates otherwise:
36 "Licensure board." Either or both of the following,
37 depending on the licensure of the affected individual:
38 (1) The State Board of Medicine.
39 (2) The State Board of Osteopathic Medicine.
40 "Physician." An individual licensed under the laws of this
41 Commonwealth to engage in the practice of:
42 (1) medicine and surgery in all its branches within the
43 scope of the act of December 20, 1985 (P.L.457, No.112),
44 known as the Medical Practice Act of 1985; or
45 (2) osteopathic medicine and surgery within the scope of
46 the act of October 5, 1978 (P.L.1109, No.261), known as the
47 Osteopathic Medical Practice Act.
48 Section 2263. Reporting.
49 A physician shall report to the State Board of Medicine or
50 the State Board of Osteopathic Medicine, as appropriate, within
51 60 days of the occurrence of any of the following:
52 (1) Notice of a complaint in a medical professional
53 liability action that is filed against the physician. The
54 physician shall provide the docket number of the case, where
55 the case is filed and a description of the allegations in the
56 complaint.
57 (2) Information regarding disciplinary action taken
58 against the physician by a health care licensing authority of
59 another state.
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1 (3) Information regarding sentencing of the physician
2 for an offense as provided in section 15 of the act of
3 October 5, 1978 (P.L.1109, No.261), known as the Osteopathic
4 Medical Practice Act, or section 41 of the act of December
5 20, 1985 (P.L.457, No.112), known as the Medical Practice Act
6 of 1985.
7 (4) Information regarding an arrest of the physician for
8 any of the following offenses in this Commonwealth or another
9 state:
10 (i) 18 Pa.C.S. Ch. 25 (relating to criminal
11 homicide);
12 (ii) 18 Pa.C.S. § 2702 (relating to aggravated
13 assault); or
14 (iii) 18 Pa.C.S. Ch. 31 (relating to sexual
15 offenses).
16 (iv) A violation of the act of April 14, 1972
17 (P.L.233, No.64), known as The Controlled Substance,
18 Drug, Device and Cosmetic Act.
19 Section 2264. Commencement of investigation and action.
20 (a) Investigations by licensure board.--With regard to
21 notices of complaints received pursuant to section 2263(1) or a
22 complaint filed with the licensure board, the licensure board
23 shall develop criteria and standards for review based on the
24 frequency and severity of complaints filed against a physician.
25 Any investigation of a physician based upon a complaint must be
26 commenced no more than four years from the date notice of the
27 complaint is received under section 2263(1).
28 (b) Action by licensure board.--Unless an investigation has
29 already been initiated pursuant to subsection (a), an action
30 against a physician must be commenced by the licensure board no
31 more than four years from the time the licensure board receives
32 the earliest of any of the following:
33 (1) Notice that a payment against the physician has been
34 reported to the National Practitioner Data Bank.
35 (2) Notice that a payment in a medical professional
36 liability action against the physician has been reported to
37 the licensure board by an insurer.
38 (3) Notice of a report made pursuant to section 2263(2),
39 (3) or (4).
40 (c) Laches.--The defense of laches is unavailable if the
41 licensure board complies with this section.
42 (d) Applicability.--This section shall apply to actions
43 against a physician initiated on or after May 20, 2002.
44 Section 2265. Action on negligence.
45 If the licensure board determines, based on actions taken
46 pursuant to section 2264, that a physician has practiced
47 negligently, the licensure board may impose disciplinary
48 sanctions or corrective measures.
49 Section 2266. Confidentiality agreements.
50 (a) Confidentiality agreements.--Upon settlement of a
51 medical professional liability action containing a
52 confidentiality agreement or upon a court order sealing the
53 settlement and related records for purposes of confidentiality,
54 the agreement or order shall not be operable against the
55 licensure board to obtain copies of medical records of the
56 patient on whose behalf the action is commenced. Prior to
57 obtaining medical records under this subsection, the licensure
58 board must obtain the consent of the patient or the patient's
59 legal representative.
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1 (b) Applicability.--The addition of subsection (a) shall
2 apply to settlements entered into and court orders issued on or
3 after May 20, 2002.
4 Section 2267. Confidentiality of records of licensure boards.
5 (a) General rule.--All documents, materials or information
6 utilized solely for an investigation undertaken by the State
7 Board of Medicine or State Board of Osteopathic Medicine or
8 concerning a complaint filed with the State Board of Medicine or
9 State Board of Osteopathic Medicine shall be confidential and
10 privileged. No person who has investigated or has access to or
11 custody of documents, materials or information which are
12 confidential and privileged under this subsection shall be
13 required to testify in any judicial or administrative proceeding
14 without the written consent of the State Board of Medicine or
15 State Board of Osteopathic Medicine. This subsection shall not
16 preclude or limit introduction of the contents of an
17 investigative file or related witness testimony in a hearing or
18 proceeding held before the State Board of Medicine or State
19 Board of Osteopathic Medicine. This subsection shall not apply
20 to letters to a licensee that disclose the final outcome of an
21 investigation or to final adjudications or orders issued by the
22 licensure board.
23 (b) Certain disclosure permitted.--Except as provided in
24 subsection (a), this section shall not prevent disclosure of any
25 documents, materials or information pertaining to the status of
26 a license, permit or certificate issued or prepared by the State
27 Board of Medicine or State Board of Osteopathic Medicine or
28 relating to a public disciplinary proceeding or hearing.
29 Section 2268. Licensure board-imposed civil penalty.
30 In addition to any other civil remedy or criminal penalty
31 provided for in this subarticle, the act of December 20, 1985
32 (P.L.457, No.112), known as the Medical Practice Act of 1985, or
33 the act of October 5, 1978 (P.L.1109, No.261), known as the
34 Osteopathic Medical Practice Act, the State Board of Medicine
35 and the State Board of Osteopathic Medicine, by a vote of the
36 majority of the maximum number of the authorized membership of
37 each board as provided by law or by a vote of the majority of
38 the duly qualified and confirmed membership or a minimum of five
39 members, whichever is greater, may levy a civil penalty of up to
40 $10,000 on any current licensee who violates any provision of
41 this subarticle, the Medical Practice Act of 1985 or the
42 Osteopathic Medical Practice Act or on any person who practices
43 medicine or osteopathic medicine without being properly licensed
44 to do so under the Medical Practice Act of 1985 or the
45 Osteopathic Medical Practice Act. The boards shall levy this
46 penalty only after affording the accused party the opportunity
47 for a hearing as provided in 2 Pa.C.S. (relating to
48 administrative law and procedure).
49 Section 2269. Licensure board report.
50 (a) Annual report.--Each licensure board shall submit a
51 report not later than March 1 of each year to the chair and the
52 minority chair of the Consumer Protection and Professional
53 Licensure Committee of the Senate and to the chair and minority
54 chair of the Professional Licensure Committee of the House of
55 Representatives. The report shall include:
56 (1) The number of complaint files against board
57 licensees that were opened in the preceding five calendar
58 years.
59 (2) The number of complaint files against board
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1 licensees that were closed in the preceding five calendar
2 years.
3 (3) The number of disciplinary sanctions imposed upon
4 board licensees in the preceding five calendar years.
5 (4) The number of revocations, automatic suspensions,
6 immediate temporary suspensions and stayed and active
7 suspensions imposed, voluntary surrenders accepted, license
8 applications denied and license reinstatements denied in the
9 preceding five calendar years.
10 (5) The range of lengths of suspensions, other than
11 automatic suspensions and immediate temporary suspensions,
12 imposed during the preceding five calendar years.
13 (b) Posting.--The report shall be posted on each licensure
14 board's publicly accessible World Wide Web site.
15 Section 2269.1. Continuing medical education.
16 (a) Rules and regulations.--Each licensure board shall
17 promulgate and enforce regulations consistent with the act of
18 October 5, 1978 (P.L.1109, No.261), known as the Osteopathic
19 Medical Practice Act, or the act of December 20, 1985 (P.L.457,
20 No.112), known as the Medical Practice Act of 1985, as
21 appropriate, in establishing requirements of continuing medical
22 education for individuals licensed to practice medicine and
23 surgery without restriction as a condition for renewal of their
24 licenses. Such regulations shall include any fees necessary for
25 the licensure board to carry out its responsibilities under this
26 section.
27 (b) Required completion.--Beginning with the licensure
28 period commencing January 1, 2003, and following written notice
29 to licensees by the licensure board, individuals licensed to
30 practice medicine and surgery without restriction shall be
31 required to enroll and complete 100 hours of mandatory
32 continuing education during each two-year licensure period. As
33 part of the 100-hour requirement, the licensure board shall
34 establish a minimum number of hours that must be completed in
35 improving patient safety and risk management subject areas.
36 (c) Review.--The licensure board shall review and approve
37 continuing medical education providers or accrediting bodies who
38 shall be certified to offer continuing medical education credit
39 hours.
40 (d) Exemption.--Licensees shall be exempt from the
41 provisions of this section as follows:
42 (1) An individual applying for licensure in this
43 Commonwealth for the first time shall be exempt from the
44 continuing medical education requirement for the biennial
45 renewal period following initial licensure.
46 (2) An individual holding a current temporary training
47 license shall be exempt from the continuing medical education
48 requirement.
49 (3) A retired physician who provides care only to
50 immediate family members shall be exempt from the continuing
51 medical education requirement.
52 (e) Waiver.--The licensure board may waive all or a portion
53 of the continuing education requirement for biennial renewal to
54 a licensee who shows to the satisfaction of the licensure board
55 that he or she was unable to complete the requirements due to
56 serious illness, military service or other demonstrated
57 hardship. A waiver request shall be made in writing, with
58 appropriate documentation, and shall include a description of
59 circumstances sufficient to show why compliance is impossible. A
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1 waiver request shall be evaluated by the licensure board on a
2 case-by-case basis. The licensure board shall send written
3 notification of its approval or denial of a waiver request.
4 (f) Reinstatement.--A licensee seeking to reinstate an
5 inactive or lapsed license shall show proof of compliance with
6 the continuing education requirement for the preceding biennium.
7 (g) Board approval.--An individual shall retain official
8 documentation of attendance for two years after renewal and
9 shall certify completed courses on a form provided by the
10 licensure board for that purpose to be filed with the biennial
11 renewal form. Official documentation proving attendance shall be
12 produced upon licensure board demand pursuant to random audits
13 of reported credit hours. Electronic submission of documentation
14 is permissible to prove compliance with this subsection.
15 Noncompliance with the requirements of this section may result
16 in disciplinary proceedings.
17 (h) Regulations.--The licensure board shall promulgate
18 regulations necessary to carry out the provisions of this
19 section by November 30, 2002.
20 CHAPTER 10
21 VOLUNTEER HEALTH SERVICES
22 Section 2270.1. Scope.
23 This article relates to volunteer health services.
24 Section 2270.2. Purpose.
25 It is the purpose of this chapter to increase the
26 availability of primary health care services by establishing a
27 procedure through which physicians and other health care
28 practitioners who are retired from active practice may provide
29 professional services as a volunteer in approved clinics serving
30 financially qualified persons and in approved clinics located in
31 medically underserved areas or health professionals shortage
32 areas.
33 Section 2270.3. Definitions.
34 The following words and phrases when used in this chapter
35 shall have the meanings given to them in this section unless the
36 context clearly indicates otherwise:
37 "Approved clinic." An organized community-based clinic
38 offering primary health care services to individuals and
39 families who cannot pay for their care, to medical assistance
40 clients or to residents of medically underserved areas or health
41 professionals shortage areas. The term may include, but shall
42 not be limited to, a State health center, nonprofit community-
43 based clinic and federally qualified health center, as
44 designated by Federal rulemaking or as approved by the
45 Department of Health or the Department of Public Welfare.
46 "Board." The State Board of Medicine, the State Board of
47 Osteopathic Medicine, the State Board of Dentistry, the State
48 Board of Podiatry, the State Board of Nursing, the State Board
49 of Optometry and the State Board of Chiropractic.
50 "Health care practitioner." An individual licensed to
51 practice a component of the healing arts by a licensing board
52 within the Department of State.
53 "Licensee." An individual who holds a current, active,
54 unrestricted license as a health care practitioner issued by the
55 appropriate board.
56 "Primary health care services." The term includes, but is
57 not limited to, regular checkups, immunizations, school
58 physicals, health education, prenatal and obstetrical care,
59 early periodic screening and diagnostic testing and health
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1 education.
2 "Volunteer license." A license issued by the appropriate
3 board to a health care practitioner who documents, to the
4 board's satisfaction, that the individual will practice only in
5 approved clinics without remuneration, who is:
6 (1) a retired health care practitioner; or
7 (2) a nonretired health care practitioner who is not
8 required to maintain professional liability insurance under
9 Chapter 7, because the health care practitioner is not
10 otherwise practicing medicine or providing health care
11 services in this Commonwealth.
12 Section 2270.4. Volunteer status.
13 A licensee in good standing who retires from active practice
14 or a nonretired licensee who does not otherwise currently
15 practice or provide health care services in this Commonwealth
16 and is not required to maintain professional liability insurance
17 under Chapter 7 may apply, on forms provided by the appropriate
18 board, for a volunteer license.
19 Section 2270.5. Regulations.
20 Each board shall promulgate regulations governing the
21 volunteer license category. The regulations shall include
22 qualifications for obtaining a volunteer license.
23 Section 2270.6. License renewal; disciplinary and corrective
24 measures.
25 (a) Renewal term.--A volunteer license shall be subject to
26 biennial renewal.
27 (b) Fee exemption.--Holders of volunteer licenses shall be
28 exempt from renewal fees imposed by the appropriate licensing
29 board.
30 (c) Continuing education.--Except as set forth in subsection
31 (d), holders of volunteer licenses shall comply with any
32 continuing education requirements imposed by board rulemaking as
33 a general condition of biennial renewal.
34 (d) Physicians.--
35 (1) Holders of volunteer licenses who are physicians
36 shall complete a minimum of 20 credit hours of American
37 Medical Association Physician's Recognition Award Category 2
38 activities during the preceding biennial period as a
39 condition of biennial renewal and are otherwise exempt from
40 any continuing education requirement imposed by section
41 2269.1, or by board rulemaking.
42 (2) Physicians who are covered by section 2270.12 and
43 hold an unrestricted license to practice medicine shall
44 complete the continuing medical education requirements
45 established by the boards under section 2269.1 to be eligible
46 for renewal of the unrestricted license.
47 (d.1) Nurses.--Holders of volunteer licenses who are nurses
48 shall complete a minimum of 20 credit hours of continuing
49 education during the preceding biennial period as a condition of
50 biennial renewal and are otherwise exempt from any continuing
51 education requirements imposed by section 12.1 of the act of May
52 22, 1951 (P.L.317, No.69), known as The Professional Nursing
53 Law, as a condition of biennial renewal.
54 (e) Disciplinary matters.--In the enforcement of
55 disciplinary matters, holders of volunteer licenses shall be
56 subject to those standards of conduct applicable to all
57 licensees licensed by the appropriate board.
58 Section 2270.7. Liability.
59 (a) General rule.--A holder of a volunteer license who, in
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1 good faith, renders professional health care services under this
2 chapter shall not be liable for civil damages arising as a
3 result of any act or omission in the rendering of care unless
4 the conduct of the volunteer licensee falls substantially below
5 professional standards which are generally practiced and
6 accepted in the community and unless it is shown that the
7 volunteer licensee did an act or omitted the doing of an act
8 which the person was under a recognized duty to a patient to do,
9 knowing or having reason to know that the act or omission
10 created a substantial risk of actual harm to the patient.
11 (b) Application.--This section shall not apply unless the
12 approved clinic posts in a conspicuous place on its premises an
13 explanation of the exemptions from civil liability provided
14 under subsection (a). The protections provided by this section
15 shall not apply to institutional health care providers, such as
16 hospitals or approved clinics, subject to vicarious liability
17 for the conduct of a volunteer license holder. The liability of
18 such institutional defendants shall be governed by the standard
19 of care established by common law.
20 Section 2270.8. Report.
21 Beginning March 5, 1997, and every 30 days thereafter until
22 such regulations are in effect, the chairmen of the appropriate
23 boards shall report in writing to the Commissioner of
24 Professional and Occupational Affairs on the status of the
25 volunteer license regulations, who shall convey the required
26 reports to the Consumer Protection and Professional Licensure
27 Committee and the Public Health and Welfare Committee of the
28 Senate and the Professional Licensure Committee and the Health
29 and Human Services Committee of the House of Representatives.
30 Section 2270.9. Exemptions.
31 For the purposes of this chapter, volunteer licensees who are
32 otherwise subject to the provisions of Chapter 7 shall be exempt
33 from the requirements of that chapter with regard to the
34 maintenance of liability insurance coverage. Volunteer licensees
35 holding a license issued by the State Board of Chiropractic
36 shall be exempt from the provisions of section 508 of the act of
37 December 16, 1986 (P.L.1646, No.188), known as the Chiropractic
38 Practice Act.
39 Section 2270.10. State health centers.
40 Services of volunteers shall not be substituted for those of
41 Commonwealth employees.
42 Section 2270.11. Prescription of medication for family members.
43 (a) General rule.--A holder of a volunteer license who was
44 able to prescribe medication pursuant to the laws of this
45 Commonwealth while a licensee may prescribe medication to any
46 member of his family notwithstanding the family member's ability
47 to pay for that member's own care or whether that member is
48 being treated at an approved clinic.
49 (b) Liability.--The liability provisions of section
50 2270.7(a) shall apply to a holder of a volunteer license who
51 prescribes medication to a family member pursuant to this
52 section, whether or not the provisions of section 2270.7(b) have
53 been followed.
54 (c) Construction.--Nothing in this section shall be
55 construed to allow a volunteer license holder to prescribe
56 medication of a type or in a manner prohibited by the laws of
57 this Commonwealth.
58 (d) Definition.--As used in this section, the term "family
59 member" means a volunteer license holder's spouse, child,
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1 daughter-in-law, son-in-law, mother, father, sibling, mother-in-
2 law, father-in-law, sister-in-law, brother-in-law, grandparent,
3 grandchild, niece, nephew or cousin.
4 Section 2270.12. Indemnity and defense for active
5 practitioners.
6 A health care practitioner who provides health care services
7 at an approved clinic without remuneration under an active
8 nonvolunteer license shall be entitled to indemnity and defense
9 under the terms of whatever liability insurance coverage is
10 maintained by or provided to the practitioner to comply with
11 Chapter 7 in the scope of their regular practice. No health care
12 practitioner may be surcharged or denied coverage for rendering
13 services at an approved clinic. Nothing in this section shall
14 limit a carrier's right to refuse coverage or to adjust premiums
15 on the basis of meritorious claims against the practitioner.
16 Section 2270.13. Optional liability coverage.
17 A holder of a volunteer license or an approved clinic acting
18 on behalf of a volunteer licensee who elects to purchase primary
19 insurance to cover services rendered at an approved clinic shall
20 not be obligated to purchase excess coverage through the Medical
21 Care Availability and Reduction of Error (Mcare) Fund.
22 CHAPTER 11
23 HEALTH CARE PROVIDER RETENTION PROGRAM
24 Section 2271. Definitions.
25 The following words and phrases when used in this chapter
26 shall have the meanings given to them in this section unless the
27 context clearly indicates otherwise:
28 "Account." The Health Care Provider Retention Account
29 established in section 2279.3.
30 "Applicant." A health care provider that is located in,
31 resides in or practices in this Commonwealth and who applies for
32 an abatement under section 2274.
33 "Assessment." The assessment imposed under section
34 2252.1(d).
35 "Emergency physician." A physician who is certified by the
36 American Board of Emergency Medicine or by the American
37 Osteopathic Board of Emergency Medicine and who is either
38 employed full time by a trauma center or a hospital for the
39 performance of services in the hospital emergency department or
40 is working under an exclusive contract with a trauma center or a
41 hospital for the performance of services in the hospital
42 emergency department.
43 "Health care provider." An individual who is all of the
44 following:
45 (1) A physician, licensed podiatrist, certified nurse
46 midwife or nursing home.
47 (2) A participating health care provider as defined in
48 section 2251.1.
49 "Licensing board." Any of the following, as appropriate to
50 the licensee:
51 (1) State Board of Medicine.
52 (2) State Board of Osteopathic Medicine.
53 (3) State Board of Podiatry.
54 "Program." The Health Care Provider Retention Program
55 established in section 2272.
56 "Trauma center." A hospital accredited by the Pennsylvania
57 Trauma Systems Foundation as a Level I, Level II or Level III
58 Trauma Center.
59 Section 2272. Abatement program.
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1 (a) Establishment.--There is hereby established within the
2 Insurance Department a program to be known as the Health Care
3 Provider Retention Program. The Insurance Department, in
4 conjunction with the Department of Public Welfare, shall
5 administer the program. The program shall provide assistance in
6 the form of assessment abatements to health care providers for
7 calendar years 2003, 2004, 2005, 2006, 2007 and 2008, except
8 that licensed podiatrists shall not be eligible for calendar
9 years 2003 and 2004, and nursing homes shall not be eligible for
10 calendar years 2003, 2004 and 2005.
11 (b) Other abatements.--
12 (1) Emergency physicians not employed full time by a
13 trauma center or working under an exclusive contract with a
14 trauma center shall retain eligibility for an abatement
15 pursuant to section 2274(b)(2) for calendar years 2003, 2004,
16 2005 and 2006. Commencing in calendar year 2007, these
17 emergency physicians shall be eligible for an abatement
18 pursuant to section 2274(b)(1).
19 (2) Birth centers shall retain eligibility for abatement
20 pursuant to section 2274(b)(2) for calendar years 2003, 2004,
21 2005, 2006 and 2007. Commencing in calendar year 2008, birth
22 centers shall be eligible for an abatement pursuant to
23 section 2274(b)(1).
24 Section 2273. Eligibility.
25 A health care provider shall not be eligible for assessment
26 abatement under the program if any of the following apply:
27 (1) The health care provider's license has been revoked
28 in any state within the ten most recent years or a health
29 care provider has a license revoked during a year in which an
30 abatement was received.
31 (2) The health care provider's ability, if any, to
32 dispense or prescribe drugs or medication has been revoked in
33 this Commonwealth or any other state within the ten most
34 recent years.
35 (3) The health care provider has had three or more
36 medical liability claims in the past five most recent years
37 in which a judgment was entered against the health care
38 provider or a settlement was paid on behalf of the health
39 care provider, in an amount equal to or exceeding $500,000
40 per claim.
41 (4) The health care provider has been convicted of or
42 has entered a plea of guilty or no contest to an offense
43 which is required to be reported under section 2263(3) or (4)
44 within the ten most recent years.
45 (5) The health care provider has an unpaid surcharge or
46 assessment under this subarticle.
47 Section 2274. Procedure.
48 (a) Application.--A health care provider may apply to the
49 Insurance Department for an abatement of the assessment imposed
50 for the previous calendar year specified on the application. The
51 application must be submitted by the second Monday of February
52 of the calendar year specified on the application and shall be
53 on the form required by the Insurance Department. The department
54 shall require that the application contain all of the following
55 supporting information:
56 (1) A statement of the applicant's field of practice,
57 including any specialty.
58 (2) Except for physicians enrolled in an approved
59 residency or fellowship program, a signed certificate of
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1 retention.
2 (3) A signed certification that the health care provider
3 is an eligible applicant under section 2273 for the program.
4 (4) Such other information as the Insurance Department
5 may require.
6 (a.1) Electronically filed application.--A hospital may
7 submit an electronic application on behalf of all health care
8 providers when the hospital is responsible for payment of the
9 health care provider's assessment under this subarticle and the
10 hospital has received prior written approval from the Insurance
11 Department.
12 (b) Review.--Upon receipt of a completed application, the
13 Insurance Department shall review the applicant's information
14 and grant the applicable abatement of the assessment for the
15 previous calendar year specified on the application in
16 accordance with all of the following:
17 (1) The Insurance Department shall notify the Department
18 of Public Welfare that the applicant has self-certified as
19 eligible for a 100% abatement of the imposed assessment if
20 the health care provider was assessed under section 2252.1(d)
21 as:
22 (i) a physician who is assessed as a member of one
23 of the four highest rate classes of the prevailing
24 primary premium;
25 (ii) an emergency physician;
26 (iii) a physician who routinely provides obstetrical
27 services in rural areas as designated by the Insurance
28 Department; or
29 (iv) a certified nurse midwife.
30 (2) The Insurance Department shall notify the Department
31 of Public Welfare that the applicant has self-certified as
32 eligible for a 50% abatement of the imposed assessment if the
33 health care provider was assessed under section 2252.1(d) as:
34 (i) a physician but is a physician who does not
35 qualify for abatement under paragraph (1);
36 (ii) a licensed podiatrist; or
37 (iii) a nursing home.
38 (c) Refund.--If a health care provider paid the assessment
39 for the calendar year prior to applying for an abatement under
40 subsection (a), the health care provider may, in addition to the
41 completed application required by subsection (a), submit a
42 request for a refund. The request shall be submitted on the form
43 required by the Insurance Department. If the Insurance
44 Department grants the health care provider an abatement of the
45 assessment for the calendar year in accordance with subsection
46 (b), the Insurance Department shall either refund to the health
47 care provider the portion of the assessment which was abated or
48 issue a credit to the health care provider's professional
49 liability insurer.
50 Section 2275. Certificate of retention.
51 (a) Certificate.--The Insurance Department shall prepare a
52 certificate of retention form. The form shall require a health
53 care provider seeking an abatement under the program to attest
54 that the health care provider will continue to provide health
55 care services in this Commonwealth for at least one full
56 calendar year following the year for which an abatement was
57 received pursuant to this chapter.
58 (a.1) Hospital responsibility.--When a hospital has
59 submitted an application on behalf of a health care provider,
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1 the hospital shall be responsible for ensuring compliance with
2 the certificate of retention and shall indemnify the health care
3 provider retention account for each health care provider who
4 fails to continue to provide medical services within this
5 Commonwealth for the year following receipt of the abatement.
6 (b) Repayment.--
7 (1) Except as provided in paragraph (2), if a health
8 care provider receives an abatement but, prior to the end of
9 the retention period, ceases providing health care services
10 in this Commonwealth, the health care provider shall repay to
11 the Commonwealth 100% of the abatement received plus
12 administrative and legal costs, if applicable. A health care
13 provider subject to this paragraph shall provide written
14 notice to the Insurance Department within 60 days of the date
15 of cessation of health care services.
16 (2) Paragraph (1) shall not apply to a health care
17 provider who is any of the following:
18 (i) A health care provider who is enrolled in an
19 approved residency or fellowship program.
20 (ii) A health care provider who dies prior to the
21 end of the retention period.
22 (iii) A health care provider who is disabled and
23 unable to practice prior to the end of the retention
24 period.
25 (iv) A health care provider who is called to active
26 military duty prior to the end of the retention period.
27 (v) A health care provider who retires and who is at
28 least 70 years of age prior to the end of the retention
29 period.
30 (c) Tax.--An amount owed the Commonwealth under subsection
31 (b) shall be considered a tax under section 1401 of the act of
32 April 9, 1929 (P.L.343, No.176), known as The Fiscal Code. The
33 Department of Revenue shall provide assistance to the Insurance
34 Department in any collection effort. Any amount collected under
35 this chapter, including administrative and legal costs, shall be
36 deposited into the Health Care Provider Retention Account.
37 (d) Failure to pay.--The Insurance Department shall notify
38 the appropriate licensing board of any failure to pay an amount
39 required of a licensee under this section. Upon such
40 notification, the licensing board shall suspend or revoke the
41 license of the licensee.
42 Section 2276. Reporting.
43 (a) Report.--By May 15 of 2004 and 2006, the Insurance
44 Department shall submit a report to the Governor, the
45 chairperson and the minority chairperson of the Banking and
46 Insurance Committee of the Senate and the chairperson and the
47 minority chairperson of the Insurance Committee of the House of
48 Representatives regarding the program. The report shall include
49 all of the following:
50 (1) The number of health care providers who applied for
51 abatement under the program.
52 (2) The number of health care providers granted 100%
53 abatement under the program.
54 (3) The number of health care providers granted 50%
55 abatement under the program.
56 (4) Based upon available information, the number of
57 health care providers who have left this Commonwealth after
58 receiving abatement under the program.
59 (5) The number of and reason for any unapproved
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1 applications.
2 (6) Any other information relevant to assessing the
3 success of the program.
4 (b) Exception.--The report shall not release information
5 which could reasonably be expected to reveal the individual
6 identity of a health care provider.
7 Section 2277. Cooperation.
8 Notwithstanding any law to the contrary, all departments
9 under the jurisdiction of the Governor shall cooperate with the
10 Insurance Department in its administration of the program.
11 Section 2278. Confidentiality.
12 Any information submitted by an applicant to the Insurance
13 Department under this chapter shall be confidential by law and
14 privileged and shall not be deemed a public record under the act
15 of June 21, 1957 (P.L.390, No.212), referred to as the Right-to-
16 Know Law, except that the Insurance Department may release
17 information necessary and proper for administration and
18 processing of specific applications or certificates of
19 retention.
20 Section 2279. Violations.
21 The following shall apply:
22 (1) Any person who willfully submits false or fraudulent
23 information under section 2274 commits a violation of 18
24 Pa.C.S. § 4904 (relating to unsworn falsification to
25 authorities) and shall, upon conviction, be subject to
26 punishment as provided by law. Any penalty imposed for
27 violating 18 Pa.C.S. § 4904 shall be in addition to any
28 penalty imposed in accordance with this chapter.
29 (2) Any person who willfully divulges or makes known
30 individual specific information submitted under this chapter,
31 permits individual specific information to be seen or
32 examined by any person or prints, publishes or makes known in
33 any manner individual specific information commits a
34 misdemeanor of the third degree and shall, upon conviction,
35 be sentenced to pay a fine not exceeding $2,500 and the costs
36 of prosecution or to undergo imprisonment for not more than
37 one year, or both.
38 Section 2279.1. Refunds or credits.
39 The Insurance Department shall either issue refunds or
40 credits for moneys due health care providers under this chapter.
41 Section 2279.2. Practice clarification.
42 Notwithstanding any other act to the contrary, health care
43 providers that conduct less than 50% of their health care
44 business or practice within this Commonwealth shall insure their
45 professional liability consistent with the limits established
46 under section 2252.
47 Section 2279.3. Health Care Provider Retention Account.
48 (a) Fund established.--There is established within the
49 General Fund a special account to be known as the Health Care
50 Provider Retention Account. Funds in the account shall be
51 subject to an annual appropriation by the General Assembly to
52 the Department of Public Welfare. The Department of Public
53 Welfare shall administer funds appropriated under this section
54 consistent with its duties under section 201(1) of the act of
55 June 13, 1967 (P.L.31, No.21), known as the Public Welfare Code.
56 (b) Transfers from Mcare Fund.--By December 31 of each year,
57 the Secretary of the Budget may transfer from the Medical Care
58 Availability and Reduction of Error (Mcare) Fund established in
59 section 2252.1(a) to the account an amount equal to the
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1 difference between the amount deposited under section 2252.1(m)
2 and the amount granted as discounts under section 2252.1(e)(2)
3 for that calendar year.
4 (c) Transfers from account.--The Secretary of the Budget may
5 annually transfer from the account to the Medical Care
6 Availability and Reduction of Error (Mcare) Fund an amount up to
7 the aggregate amount of abatements granted by the Insurance
8 Department under section 2274(b).
9 (c.1) Transfers to the Medical Care Availability and
10 Reduction of Error (Mcare) Reserve Fund.--Any funds remaining in
11 the account after the Secretary of the Budget makes the transfer
12 under subsection (c) shall be transferred to the Medical Care
13 Availability and Reduction of Error (Mcare) Reserve Fund.
14 (d) Other deposits.--The Department of Public Welfare may
15 deposit any other funds received by the department which it
16 deems appropriate in the account.
17 (e) Administration assistance.--The Insurance Department
18 shall provide assistance to the Department of Public Welfare in
19 administering the account.
20 Section 2279.4. Penalties.
21 The penalties imposed under this chapter or any other
22 applicable act shall be cumulative.
23 Section 2279.5. Rules and regulations.
24 The Insurance Department shall promulgate rules and
25 regulations as necessary to carry out the provisions of this
26 chapter.
27 Section 2279.6. Expiration.
28 The Health Care Provider Retention Program established under
29 this chapter shall expire December 31, 2009.
30 CHAPTER 51
31 MISCELLANEOUS PROVISIONS
32 Section 2291. Oversight.
33 (a) General rule.--The Insurance Department has the
34 authority and shall assume oversight of the Medical Professional
35 Liability Catastrophe Loss Fund established in section 701(d) of
36 the act of October 15, 1975 (P.L.390, No.111), known as the
37 former Health Care Services Malpractice Act. As part of its
38 responsibilities, the department shall do all of the following:
39 (1) Make all administrative decisions, including
40 staffing requirements, on behalf of that fund.
41 (2) Approve the adjustment, defense, litigation,
42 settlement or compromise of any claim payable by that fund.
43 (3) Collect the surcharges imposed in accordance with
44 section 701(e)(1) of the Health Care Services Malpractice
45 Act.
46 (b) Expiration.--This section shall expire October 1, 2002.
47 Section 2292. Prior fund.
48 (a) Administration.--Employees of the Medical Professional
49 Liability Catastrophe Loss Fund on March 20, 2002 shall continue
50 to administer that fund subject to the authority and oversight
51 of the Insurance Department. This subsection shall expire
52 October 1, 2002.
53 (b) Employees.--If an employee of that fund on March 20,
54 2002 is subsequently furloughed and the employee held a position
55 not covered by a collective bargaining agreement, the employee
56 shall be given priority consideration for employment to fill
57 vacancies with executive agencies under the Governor's
58 jurisdiction.
59 Section 2293. Notice.
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1 When the authority has established a Statewide reporting
2 system, the notice shall be transmitted to the Legislative
3 Reference Bureau for publication in the Pennsylvania Bulletin.
4 Section 2293.1. Commission on the Mcare Fund.
5 (a) Declaration of policy.--The General Assembly recognizes
6 that changes in the medical professional liability insurance
7 market have necessitated the need for a plan to address the
8 unfunded liabilities of the Medical Care Availability and
9 Reduction of Error (Mcare) Fund.
10 (b) Establishment of Commission on the Mcare Fund.--There is
11 established a Commission on the Mcare Fund for the purpose of
12 reviewing and making recommendations regarding appropriate and
13 effective methods to address any future unfunded liabilities of
14 the Mcare Fund.
15 (1) The commission shall consist of the following
16 members:
17 (i) The Insurance Commissioner or designee of the
18 Insurance Commissioner, who shall serve as the
19 chairperson of the commission.
20 (ii) The Secretary of the Budget or designee of the
21 Office of the Budget.
22 (iii) The Secretary of Revenue or a designee of the
23 Secretary of Revenue.
24 (iv) Two members appointed by the President pro
25 tempore of the Senate and two members appointed by the
26 Minority Leader of the Senate.
27 (v) Two members appointed by the Speaker of the
28 House of Representatives and two members appointed by the
29 Minority Leader of the House of Representatives.
30 (2) The commission shall establish an advisory committee
31 composed of no more than 15 individuals with expertise in
32 areas including: health care, medical professional liability
33 insurance, the law, finance and actuarial analysis. The
34 members of the advisory committee shall serve without
35 compensation but shall be reimbursed for their actual and
36 necessary expenses for attendance at meetings.
37 (3) The commission shall undertake a study of the future
38 scope and obligations of the fund and shall submit its report
39 to the Governor and General Assembly by November 15, 2006.
40 The commission shall make recommendations concerning
41 continuation of the Mcare abatement, the elimination or
42 phaseout of the fund and other provisions for providing
43 adequate medical professional liability insurance, including,
44 at a minimum, an evaluation and actuarial analysis of the
45 projected scope of the fund's future unfunded liability and
46 any reasonable and available financing options for retiring
47 those unfunded liabilities.
48 (4) The commission is authorized to incur expenses
49 deemed necessary to implement this section. Expenses incurred
50 for this purpose shall be paid by the fund.
51 (5) The commission shall expire November 30, 2006.
52 Section 2294. (Reserved).
53 Section 2295. Applicability.
54 (a) Patient safety discount.--Section 2219.3 shall apply to
55 policies issued or renewed after December 31, 2002.
56 (b) Actions.--Sections 2234(d)(2), 2235(e), 2238, 2239,
57 2239.1, 2239.4 and 2239.7 shall apply to causes of action which
58 arise on or after March 20, 2002.
59 Section 2296. Expiration.
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1 Section 2219.3 shall expire December 31, 2008.
2 ARTICLE XXV
3 PREVENTABLE SERIOUS ADVERSE EVENTS
4 Section 2501. Scope of article.
5 This article relates to preventable serious adverse events.
6 Section 2502. Definitions.
7 The following words and phrases when used in this article
8 shall have the meanings given to them in this section unless the
9 context clearly indicates otherwise:
10 "Centers for Medicare and Medicaid Services" or "CMS." The
11 Centers for Medicare and Medicaid Services within the United
12 States Department of Health and Human Services.
13 "Department." The Insurance Department of the Commonwealth.
14 "Facility." A health care facility as defined in section
15 802.1 of the act of July 19, 1979 (P.L.130, No.48), known as the
16 Health Care Facilities Act, or an entity licensed as a hospital
17 under the act of June 13, 1967 (P.L.31, No.21), known as the
18 Public Welfare Code.
19 "Health care provider." A health care facility or a person,
20 including a corporation, university or other educational
21 institution licensed or approved by the Commonwealth to provide
22 health care or professional medical services as a physician, a
23 certified nurse midwife, a podiatrist, a certified registered
24 nurse practitioner, a physician assistant, a chiropractor, a
25 hospital, an ambulatory surgery center, a nursing home or a
26 birth center.
27 "Health payor." An individual or entity providing a group
28 health, sickness or accident policy, subscriber contract or
29 program issued or provided by an entity under this act or any of
30 the following:
31 (1) The act of June 2, 1915 (P.L.736, No.338), known as
32 the Workers' Compensation Act.
33 (2) The act of December 29, 1972 (P.L.1701, No.364),
34 known as the Health Maintenance Organization Act.
35 (3) The act of May 18, 1976 (P.L.123, No.54), known as
36 the Individual Accident and Sickness Insurance Minimum
37 Standards Act.
38 (4) 40 Pa.C.S. Ch. 61 (relating to hospital plan
39 corporations).
40 (5) 40 Pa.C.S. Ch. 63 (relating to professional health
41 services plan corporations).
42 "Medical assistance." The Commonwealth's medical assistance
43 program established under the act of June 13, 1967 (P.L.31,
44 No.21), known as the Public Welfare Code.
45 "Preventable serious adverse event." A clearly defined
46 condition or negative consequence of care that results in
47 unintended injury or illness that could have been anticipated
48 and prepared for, but that occurs because of an error or other
49 system failure and results in a patient's death, loss of a body
50 part, disability or loss of bodily function lasting more than
51 seven days.
52 Section 2503. Payment policy for preventable serious adverse
53 events.
54 (a) General rule.--The following criteria shall be used by
55 health payors in determining when payment or partial payment to
56 a health care provider will be withheld:
57 (1) A preventable serious adverse event must occur.
58 (2) The preventable serious adverse event must be within
59 the control of the health care provider.
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1 (3) The preventable serious adverse event must occur in
2 a health care facility.
3 (b) Language addressing payment policy.--Payments can only
4 be withheld by health payors for services related to a
5 preventable serious adverse event or care made necessary by the
6 preventable serious adverse event if the agreement or contract
7 between the health payor and health care provider contains
8 language addressing payment policy for preventable serious
9 adverse events.
10 (c) Restriction.--Health care providers shall not seek
11 payment directly from patients or the responsible party of the
12 patient for preventable serious adverse events.
13 Section 2504. Duties of Department of Public Welfare.
14 (a) Department responsibilities.--The Department of Public
15 Welfare is responsible for the following:
16 (1) Determining payment policy under medical assistance
17 with respect to reduced reimbursements to health care
18 providers for preventable serious adverse events. This
19 payment policy includes the criteria and clearly stated
20 payment policies affecting health care providers.
21 (2) Publishing the payment policy in the Pennsylvania
22 Bulletin following a 30-day public comment period.
23 (b) Ongoing reviews.--Nothing in this section shall affect
24 ongoing reviews of medical assistance services conducted by the
25 Department of Public Welfare.
26 (c) Hospital payment policy.--Nothing in this section shall
27 require the department to alter, amend or reissue any payment
28 policy for inpatient hospitals relating to preventable serious
29 adverse events that was promulgated prior to the effective date
30 of this article.
31 Section 2505. Duties of department.
32 The department shall annually notify health payors of the
33 list of preventable serious adverse events that CMS is using
34 under the Medicare program and for which health payors shall be
35 permitted to withhold reimbursement under section 2503.
36 Section 2506. Duties of Department of Health.
37 In accordance with the act of July 19, 1979 (P.L.130, No.48),
38 known as the Health Care Facilities Act, the Department of
39 Health shall be responsible for investigating patient complaints
40 regarding a health care facility that is seeking payment
41 directly from the patient for a preventable serious adverse
42 event.
43 Section 2507. Duties of Department of State.
44 The Department of State shall be responsible for
45 investigating patient complaints regarding a health care
46 provider that is not a health care facility that is seeking
47 payment directly from the patient for a preventable serious
48 adverse event.
49 Section 2. Repeals are as follows:
50 (1) The General Assembly declares that the repeal under
51 paragraph (2) is necessary to effectuate the addition of
52 Subarticle A of Article XXII of the act.
53 (2) The act of March 20, 2002 (P.L.154, No.13), known as
54 the Medical Care Availability and Reduction of Error (Mcare)
55 Act, is repealed.
56 Section 3. Orders and regulations which were issued or
57 promulgated under the former act of March 20, 2002 (P.L.154,
58 No.13), known as the Medical Care Availability and Reduction of
59 Error (Mcare) Act, and which are in effect on the effective date
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1 of section 2 of this act shall remain applicable and in full
2 force and effect until modified under Subarticle A of Article
3 XXII of the act.
4 Section 4. This act shall take effect as follows:
5 (1) The addition of Article XXV of the act shall take
6 effect in 180 days.
7 (2) The remainder of this act shall take effect
8 immediately.
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