Congressional Record — Senate, August 4, 2020, Page S4874
Summary
Page S4874 of the Senate section of the Congressional Record for August 4, 2020, in interleaved columns, with amendment text and findings. Provisions have the Secretary post data online on telehealth and other virtual services under Medicare, with a report to Congress within 15 months. Findings praise frontline health care workers who fought the virus with little early information, and say businesses stepped up to make protective equipment. A closing finding says Congress must safeguard taxpayer dollars under the CARES Act so those funds help businesses, workers and health care facilities, and are not diverted.
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“Congressional Record — Senate, August 4, 2020, Page S4874.”
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S4874 CONGRESSIONAL RECORD — SENATE August 4, 2020
(i) INTERIM PROVISION OF INFORMATION.— (2) For months, frontline health care work- facilities are able to act fully to defeat the
The Secretary shall, as determined appro- ers and health care facilities have fought the virus.
priate, periodically during such emergency virus with courage and resolve. They did so (11) Congress must also safeguard its in-
period, post on the internet website of the at first with very little information about vestment of taxpayer dollars under the
Centers for Medicare & Medicaid services how to treat the virus and developed strate- CARES Act and other coronavirus legisla-
data on utilization of telehealth and other gies to save lives of the people of the United tion. Congress must ensure that those funds
virtual services under the Medicare program States in real time. They risked their per- are used to help businesses and workers sur-
and the impact of characteristics described sonal health and wellbeing to protect and vive and recover from the economic crisis,
in subparagraph (A) on such utilization. treat their patients. and to help health care workers and health
(ii) REPORT.—Not later than 15 months (3) Businesses in the United States kicked care facilities defeat the virus. CARES Act
after date of enactment of this Act, the Sec- into action to produce and procure personal funds cannot be diverted from these impor-
retary shall submit to Congress a report on protective equipment, such as masks, gloves, tant purposes to line the pockets of the trial
the study conducted under subparagraph (A), face shields, and hand sanitizer, and other bar.
together with recommendations for such leg- necessary medical supplies, such as ventila- (12) One of the chief impediments to the
islation and administrative action as the tors, at unprecedented rates. continued flow of interstate commerce as
Secretary determines appropriate. (4) To halt the spread of the disease, State this public-health crisis has unfolded is the
and local governments took drastic meas- risk of litigation. Small and large busi-
SA 2564. Mr. MORAN submitted an ures. They shut down small and large busi- nesses, schools, colleges and universities, re-
amendment intended to be proposed to nesses, schools, colleges and universities, re-
ligious, philanthropic and other nonprofit in-
amendment SA 2499 proposed by Mr. ligious, philanthropic and other nonprofit in-
stitutions, and local government agencies
stitutions, and local government agencies.
MCCONNELL to the bill S. 178, to con- They ordered people to remain in their
confront the risk of a tidal wave of lawsuits
demn gross human rights violations of accusing them of exposing employees, cus-
homes.
ethnic Turkic Muslims in Xinjiang, and tomers, students, and worshipers to
(5) This standstill was needed to slow the
calling for an end to arbitrary deten- coronavirus. Health care workers face the
spread of the virus. But it devastated the
threat of lawsuits arising from their efforts
tion, torture, and harassment of these economy of the United States. The sum of
hundreds of local-level and State-level deci- to fight the virus.
communities inside and outside China; (13) They confront this litigation risk even
which was ordered to lie on the table; sions to close nearly every space in which
people might gather brought interstate com- as they work tirelessly to comply with the
as follows: coronavirus guidance, rules, and regulations
merce nearly to a halt.
At the appropriate place, insert the fol- (6) This halt led to the loss of millions of issued by local governments, State govern-
lowing: jobs. These lost jobs were not a natural con- ments, and the Federal Government. They
SEC. lll. PAYCHECK PROTECTION PROGRAM. sequence of the economic environment, but confront this risk notwithstanding equip-
Section 7(a)(36)(D) of the Small Business rather the result of a drastic, though tem- ment and staffing shortages. And they con-
Act (15 U.S.C. 636(a)(36)(D)) is amended by porary, response to the unprecedented na- front this risk while also grappling with con-
striking clause (i) and inserting the fol- ture of this global pandemic. stantly changing information on how best to
lowing: (7) Congress passed a series of statutes to protect employees, customers, students, and
‘‘(i) IN GENERAL.—During the covered pe- address the health care and economic cri- worshipers from the virus, and how best to
riod, in addition to small business concerns, ses—the Coronavirus Preparedness and Re- treat it.
any business concern, nonprofit organiza- sponse Supplemental Appropriations Act, (14) These lawsuits pose a substantial risk
tion, veterans organization, or Tribal busi- 2020 (Public Law 116–123; 134 Stat. 146), the to interstate commerce because they threat-
ness concern described in section 31(b)(2)(C) Families First Coronavirus Response Act en to keep small and large businesses,
shall be eligible to receive a covered loan if (Public Law 116–127; 134 Stat. 178), the schools, colleges and universities, religious,
the business concern, nonprofit organization, Coronavirus Aid, Relief, and Economic Secu- philanthropic and other nonprofit institu-
veterans organization, or Tribal business rity Act or the CARES Act (Public Law 116– tions, and local government agencies from
concern— 136), and the Paycheck Protection Program reopening for fear of expensive litigation
‘‘(I) employs not more than the greater and Health Care Enhancement Act (Public that might prove to be meritless. These law-
of— Law 116–139; 134 Stat. 620). In these laws Con- suits further threaten to undermine the Na-
‘‘(aa) 500 employees; or gress exercised its power under the Com- tion’s fight against the virus by exposing our
‘‘(bb) if applicable, the size standard in merce and Spending Clauses of the Constitu- health care workers and health care facili-
number of employees established by the Ad- tion of the United States to direct trillions ties to liability for difficult medical deci-
ministration for the industry in which the of taxpayer dollars toward efforts to aid sions they have made under trying and un-
business concern, nonprofit organization, workers, businesses, State and local govern- certain circumstances.
veterans organization, or Tribal business ments, health care workers, and patients. (15) These lawsuits also risk diverting tax-
concern operates; or (8) This legislation provided short-term in- payer money provided under the CARES Act
‘‘(II) is as described in clauses (i) and (ii) of sulation from the worst of the economic and other coronavirus legislation from its in-
section 3(a)(5)(B).’’. storm, but these laws alone cannot protect tended purposes to the pockets of opportun-
the United States from further devastation. istic trial lawyers.
SA 2565. Mr. CORNYN (for himself Only reopening the economy so that workers (16) This risk is not purely local. It is nec-
and Mr. MCCONNELL) submitted an can get back to work and students can get essarily national in scale. A patchwork of
amendment intended to be proposed to back to school can accomplish that goal. local and State rules governing liability in
amendment SA 2499 proposed by Mr. (9) The Constitution of the United States coronavirus-related lawsuits creates tremen-
specifically enumerates the legislative pow- dous unpredictability for everyone partici-
MCCONNELL to the bill S. 178, to con-
ers of Congress. One of those powers is the pating in interstate commerce and acts as a
demn gross human rights violations of regulation of interstate commerce. The Gov- significant drag on national recovery. The
ethnic Turkic Muslims in Xinjiang, and ernment is not a substitute for the economy, aggregation of each individual potential li-
calling for an end to arbitrary deten- but it has the authority and the duty to act ability risk poses a substantial and unprece-
tion, torture, and harassment of these when interstate commerce is threatened and dented threat to interstate commerce.
communities inside and outside China; damaged. As applied to the present crisis, (17) The accumulated economic risks for
which was ordered to lie on the table; Congress can deploy its power over inter- these potential defendants directly and sub-
as follows: state commerce to promote a prudent re- stantially affects interstate commerce. Indi-
opening of businesses and other organiza- viduals and entities potentially subject to
At the end, add the following:
tions that serve as the foundation and back- coronavirus-related liability will structure
TITLE II—SAFE TO WORK bone of the national economy and of com- their decisionmaking to avoid that liability.
SEC. 201. SHORT TITLE. merce among the States. These include Small and large businesses, schools, colleges
This title may be cited as the ‘‘Safe- small and large businesses, schools (which and universities, religious, philanthropic and
guarding America’s Frontline Employees To are substantial employers in their own right other nonprofit institutions, and local gov-
Offer Work Opportunities Required to and provide necessary services to enable par- ernment agencies may decline to reopen be-
Kickstart the Economy Act’’ or the ‘‘SAFE ents and other caregivers to return to work), cause of the risk of litigation. They may
TO WORK Act’’. colleges and universities (which are substan- limit their output or engagement with cus-
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SEC. 202. FINDINGS AND PURPOSES. tial employers and supply the interstate tomers and communities to avoid the risk of
(a) FINDINGS.—Congress finds the fol- market for higher-education services), reli- litigation. These individual economic deci-
lowing: gious, philanthropic and other nonprofit in- sions substantially affect interstate com-
(1) The SARS–CoV–2 virus that originated stitutions (which are substantial employers merce because, as a whole, they will prevent
in China and causes the disease COVID–19 and provide necessary services to their com- the free and fair exchange of goods and serv-
has caused untold misery and devastation munities), and local government agencies. ices across State lines. Such economic activ-
throughout the world, including in the (10) Congress must also ensure that the Na- ity that, individually and in the aggregate,
United States. tion’s health care workers and health care substantially affects interstate commerce is
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August 4, 2020 CONGRESSIONAL RECORD — SENATE S4875
precisely the sort of conduct that should be (8) protect the interests of the taxpayers Secretary of Health and Human Services on
subject to congressional regulation. by ensuring that emergency taxpayer sup- March 17, 2020.
(18) Lawsuits against health care workers port continues to aid businesses, workers, (B) EXCLUSIONS.—The term ‘‘coronavirus
and facilities pose a similarly dangerous risk and health care providers rather than enrich exposure action’’ does not include—
to interstate commerce. Interstate com- trial lawyers; and (i) a criminal, civil, or administrative en-
merce will not truly rebound from this crisis (9) protect the highest and best ideals of forcement action brought by the Federal
until the virus is defeated, and that will not the national economy, so businesses can Government or any State, local, or Tribal
happen unless health care workers and facili- produce and serve their customers, workers government; or
ties are free to combat vigorously the virus can work, teachers can teach, students can (ii) a claim alleging intentional discrimi-
and treat patients with coronavirus and learn, and believers can worship. nation on the basis of race, color, national
those otherwise impacted by the response to SEC. 203. DEFINITIONS. origin, religion, sex (including pregnancy),
coronavirus. In this title: disability, genetic information, or age.
(19) Subjecting health care workers and fa- (1) APPLICABLE GOVERNMENT STANDARDS (5) CORONAVIRUS-RELATED ACTION.—The
cilities to onerous litigation even as they AND GUIDANCE.—The term ‘‘applicable gov- term ‘‘coronavirus-related action’’ means a
have done their level best to combat a virus ernment standards and guidance’’ means— coronavirus exposure action or a
about which very little was known when it (A) any mandatory standards or regula- coronavirus-related medical liability action.
arrived in the United States would divert im- tions specifically concerning the prevention (6) CORONAVIRUS-RELATED HEALTH CARE
portant health care resources from hospitals or mitigation of the transmission of SERVICES.—The term ‘‘coronavirus-related
and providers to courtrooms. coronavirus issued by the Federal Govern- health care services’’ means services pro-
(20) Such a diversion would substantially ment, or a State or local government with vided by a health care provider, regardless of
affect interstate commerce by degrading the jurisdiction over an individual or entity, the location where the services are provided,
national capacity for combating the virus whether provided by executive, judicial, or that relate to—
and saving patients, thereby substantially legislative order; and (A) the diagnosis, prevention, or treatment
elongating the period before interstate com- (B) with respect to an individual or entity of coronavirus;
merce could fully re-engage. that, at the time of the actual, alleged, (B) the assessment or care of an individual
(21) Congress also has the authority to de- feared, or potential for exposure to with a confirmed or suspected case of
termine the jurisdiction of the courts of the coronavirus is not subject to any mandatory coronavirus; or
United States, to set the standards for standards or regulations described in sub- (C) the care of any individual who is admit-
causes of action they can hear, and to estab- paragraph (A), any guidance, standards, or ted to, presents to, receives services from, or
lish the rules by which those causes of action regulations specifically concerning the pre- resides at, a health care provider for any
should proceed. Congress therefore must act vention or mitigation of the transmission of purpose during the period of a Federal emer-
to set rules governing liability in coronavirus issued by the Federal Govern- gency declaration concerning coronavirus, if
coronavirus-related lawsuits. ment, or a State or local government with such provider’s decisions or activities with
(22) These rules necessarily must be tem- jurisdiction over the individual or entity. respect to such individual are impacted as a
porary and carefully tailored to the inter- (2) BUSINESSES, SERVICES, ACTIVITIES, OR result of coronavirus.
state crisis caused by the coronavirus pan- ACCOMMODATIONS.—The term ‘‘businesses, (7) CORONAVIRUS-RELATED MEDICAL LIABIL-
demic. They must extend no further than services, activities, or accommodations’’ ITY ACTION.—
necessary to meet this uniquely national cri- means any act by an individual or entity, ir- (A) IN GENERAL.—The term ‘‘coronavirus-
sis for which a patchwork of State and local respective of whether the act is carried on related medical liability action’’ means a
tort laws are ill-suited. for profit, that is interstate or foreign com- civil action—
(23) Because of the national scope of the merce, that involves persons or things in (i) brought by a person who suffered per-
economic and health care dangers posed by interstate or foreign commerce, that in- sonal injury, or a representative of a person
the risks of coronavirus-related lawsuits, es- volves the channels or instrumentalities of who suffered personal injury;
tablishing temporary rules governing liabil- interstate or foreign commerce, that sub- (ii) brought against a health care provider;
ity for certain coronavirus-related tort stantially affects interstate or foreign com- and
claims is a necessary and proper means of merce, or that is otherwise an act subject to (iii) alleging any harm, damage, breach, or
carrying into execution Congress’s power to regulation by Congress as necessary and tort resulting in the personal injury alleged
regulate commerce among the several proper to carry into execution Congress’s to have been caused by, be arising out of, or
States. powers to regulate interstate or foreign com- be related to a health care provider’s act or
(24) Because Congress must safeguard the merce or to spend funds for the general wel- omission in the course of arranging for or
investment of taxpayer dollars it made in fare. providing coronavirus-related health care
the CARES Act and other coronavirus legis- (3) CORONAVIRUS.—The term ‘‘coronavirus’’ services that occurred—
lation, and ensure that they are used for means any disease, health condition, or (I) on or after December 1, 2019; and
their intended purposes and not diverted for threat of harm caused by the SARS–CoV–2 (II) before the later of—
other purposes, establishing temporary rules virus or a virus mutating therefrom. (aa) October 1, 2024; or
governing liability for certain coronavirus- (4) CORONAVIRUS EXPOSURE ACTION.— (bb) the date on which there is no declara-
related tort claims is a necessary and proper (A) IN GENERAL.—The term ‘‘coronavirus tion by the Secretary of Health and Human
means of carrying into execution Congress’s exposure action’’ means a civil action— Services under section 319F–3(b) of the Pub-
power to provide for the general welfare of (i) brought by a person who suffered per- lic Health Service Act (42 U.S.C. 247d–6d(b))
the United States. sonal injury or is at risk of suffering per- (relating to covered countermeasures) that is
(b) PURPOSES.—Pursuant to the powers del- sonal injury, or a representative of a person in effect with respect to coronavirus, includ-
egated to Congress by article I, section 8, who suffered personal injury or is at risk of ing the Declaration Under the Public Readi-
clauses 1, 3, 9, and 18, and article III, section suffering personal injury; ness and Emergency Preparedness Act for
2, clause 1 of the Constitution of the United (ii) brought against an individual or entity Medical Countermeasures Against COVID–19
States, the purposes of this title are to— engaged in businesses, services, activities, or (85 Fed. Reg. 15198 ) issued by the Secretary
(1) establish necessary and consistent accommodations; and of Health and Human Services on March 17,
standards for litigating certain claims spe- (iii) alleging that an actual, alleged, 2020.
cific to the unique coronavirus pandemic; feared, or potential for exposure to (B) EXCLUSIONS.—The term ‘‘coronavirus-
(2) prevent the overburdening of the court coronavirus caused the personal injury or related medical liability action’’ does not in-
systems with undue litigation; risk of personal injury, that— clude—
(3) encourage planning, care, and appro- (I) occurred in the course of the businesses, (i) a criminal, civil, or administrative en-
priate risk management by small and large services, activities, or accommodations of forcement action brought by the Federal
businesses, schools, colleges and univer- the individual or entity; and Government or any State, local, or Tribal
sities, religious, philanthropic and other (II) occurred— government; or
nonprofit institutions, local government (aa) on or after December 1, 2019; and (ii) a claim alleging intentional discrimi-
agencies, and health care providers; (bb) before the later of— nation on the basis of race, color, national
(4) ensure that the Nation’s recovery from (AA) October 1, 2024; or origin, religion, sex (including pregnancy),
the coronavirus economic crisis is not bur- (BB) the date on which there is no declara- disability, genetic information, or age.
dened or slowed by the substantial risk of tion by the Secretary of Health and Human (8) EMPLOYER.—The term ‘‘employer’’—
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litigation; Services under section 319F–3(b) of the Pub- (A) means any person serving as an em-
(5) prevent litigation brought to extract lic Health Service Act (42 U.S.C. 247d–6d(b)) ployer or acting directly in the interest of an
settlements and enrich trial lawyers rather (relating to medical countermeasures) that employer in relation to an employee;
than vindicate meritorious claims; is in effect with respect to coronavirus, in- (B) includes a public agency; and
(6) protect interstate commerce from the cluding the Declaration Under the Public (C) does not include any labor organization
burdens of potentially meritless litigation; Readiness and Emergency Preparedness Act (other than when acting as an employer) or
(7) ensure the economic recovery proceeds for Medical Countermeasures Against any person acting in the capacity of officer
without artificial and unnecessary delay; COVID–19 (85 Fed. Reg. 15198 ) issued by the or agent of such labor organization.
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S4876 CONGRESSIONAL RECORD — SENATE August 4, 2020
(9) GOVERNMENT.—The term ‘‘government’’ (B) borough; (A) IN GENERAL.—This part creates an ex-
means an agency, instrumentality, or other (C) municipality; clusive cause of action for coronavirus expo-
entity of the Federal Government, a State (D) city; sure actions.
government (including multijurisdictional (E) town; (B) LIABILITY.—A plaintiff may prevail in a
agencies, instrumentalities, and entities), a (F) township; coronavirus exposure action only in accord-
local government, or a Tribal government. (G) parish; ance with the requirements of this subtitle.
(10) GROSS NEGLIGENCE.—The term ‘‘gross (H) local public authority, including any (C) APPLICATION.—The provisions of this
negligence’’ means a conscious, voluntary public housing agency under the United part shall apply to—
act or omission in reckless disregard of— States Housing Act of 1937 (42 U.S.C. 1437 et (i) any cause of action that is a
(A) a legal duty; seq.); coronavirus exposure action that was filed
(B) the consequences to another party; and (I) special district; before the date of enactment of this Act and
(C) applicable government standards and (J) school district; that is pending on such date of enactment;
guidance. (K) intrastate district; and
(11) HARM.—The term ‘‘harm’’ includes— (L) council of governments, whether or not (ii) any coronavirus exposure action filed
(A) physical and nonphysical contact that incorporated as a nonprofit corporation on or after such date of enactment.
results in personal injury to an individual; under State law; and (2) PRESERVATION OF LIABILITY LIMITS AND
and (M) agency or instrumentality of— DEFENSES.—Except as otherwise explicitly
(B) economic and noneconomic losses. (i) multiple units of local government (in- provided in this part, nothing in this part ex-
(12) HEALTH CARE PROVIDER.— cluding units of local government located in pands any liability otherwise imposed or
(A) IN GENERAL.—The term ‘‘health care different States); or limits any defense otherwise available under
provider’’ means any person, including an (ii) an intra-State unit of local govern- Federal, State, or Tribal law.
agent, volunteer (subject to subparagraph ment. (3) IMMUNITY.—Nothing in this part abro-
(C)), contractor, employee, or other entity, (15) MANDATORY.—The term ‘‘mandatory’’, gates the immunity of any State, or waives
who is— with respect to standards or regulations, the immunity of any Tribal government. The
(i) required by Federal or State law to be means the standards or regulations are limitations on liability provided under this
licensed, registered, or certified to provide themselves enforceable by the issuing gov- part shall control in any action properly
health care and is so licensed, registered, or ernment through criminal, civil, or adminis- filed against a State or Tribal government
certified (or is exempt from any such re- trative action. pursuant to a duly executed waiver by the
quirement); (16) PERSONAL INJURY.—The term ‘‘personal State or Tribe of sovereign immunity and
(ii) otherwise authorized by Federal or injury’’— stating claims within the scope of this part.
State law to provide care (including services (A) means actual or potential physical in- (b) PREEMPTION AND SUPERSEDURE.—
and supports furnished in a home or commu- jury to an individual or death caused by a (1) IN GENERAL.—Except as described in
nity-based residential setting under the physical injury; and paragraphs (2) through (6), this part pre-
State Medicaid program or a waiver of that (B) includes mental suffering, emotional empts and supersedes any Federal, State, or
program); or distress, or similar injuries suffered by an in- Tribal law, including statutes, regulations,
(iii) considered under applicable Federal or dividual in connection with a physical in-
State law to be a health care provider, rules, or standards that are enacted, promul-
jury. gated, or established under common law, re-
health care professional, health care institu- (17) STATE.—The term ‘‘State’’—
tion, or health care facility. lated to recovery for personal injuries caused
(A) means any State of the United States, by actual, alleged, feared, or potential for
(B) INCLUSION OF ADMINISTRATORS, SUPER- the District of Columbia, the Commonwealth
VISORS, ETC.—The term ‘‘health care pro-
exposure to coronavirus.
of Puerto Rico, the Northern Mariana Is- (2) STRICTER LAWS NOT PREEMPTED OR SU-
vider’’ includes a health care facility admin- lands, the United States Virgin Islands,
istrator, executive, supervisor, board mem- PERSEDED.—Nothing in this part shall be
Guam, American Samoa, and any other ter- construed to affect the applicability of any
ber or trustee, or another individual respon- ritory or possession of the United States,
sible for directing, supervising, or moni- provision of any Federal, State, or Tribal
and any political subdivision or instrumen- law that imposes stricter limits on damages
toring the provision of coronavirus-related tality thereof; and
health care services in a comparable role. or liabilities for personal injury caused by,
(B) includes any agency or instrumentality arising out of, or related to an actual, al-
(C) INCLUSION OF VOLUNTEERS.—The term of 2 or more of the entities described in sub-
‘‘health care provider’’ includes volunteers leged, feared, or potential for exposure to
paragraph (A). coronavirus, or otherwise affords greater
that meet the following criteria: (18) TRIBAL GOVERNMENT.—
(i) The volunteer is a health care profes- protection to defendants in any coronavirus
(A) IN GENERAL.—The term ‘‘Tribal govern- exposure action, than are provided in this
sional providing coronavirus-related health ment’’ means the recognized governing body
care services. part. Any such provision of Federal, State,
of any Indian tribe included on the list pub- or Tribal law shall be applied in addition to
(ii) The act or omission by the volunteer
lished by the Secretary of the Interior pursu- the requirements of this part and not in lieu
occurs—
ant to section 104(a) of the Federally Recog- thereof.
(I) in the course of providing health care
nized Indian Tribe List Act of 1994 (25 U.S.C. (3) WORKERS’ COMPENSATION LAWS NOT PRE-
services;
5131(a)). EMPTED OR SUPERSEDED.—Nothing in this
(II) in the health care professional’s capac-
(B) INCLUSION.—The term ‘‘Tribal govern- part shall be construed to affect the applica-
ity as a volunteer;
ment’’ includes any subdivision (regardless bility of any State or Tribal law providing
(III) in the course of providing health care
of the laws and regulations of the jurisdic- for a workers’ compensation scheme or pro-
services that—
tion in which the subdivision is organized or gram, or to preempt or supersede an exclu-
(aa) are within the scope of the license,
incorporated) of a governing body described sive remedy under such scheme or program.
registration, or certification of the volun-
in subparagraph (A) that— (4) ENFORCEMENT ACTIONS.—Nothing in this
teer, as defined by the State of licensure,
(i) is wholly owned by that governing body; part shall be construed to impair, limit, or
registration, or certification; and
and affect the authority of the Federal Govern-
(bb) do not exceed the scope of license, reg-
(ii) has been delegated the right to exercise ment, or of any State, local, or Tribal gov-
istration, or certification of a substantially
1 or more substantial governmental func- ernment, to bring any criminal, civil, or ad-
similar health professional in the State in
tions of the governing body. ministrative enforcement action against any
which such act or omission occurs; and
(19) WILLFUL MISCONDUCT.—The term ‘‘will- individual or entity.
(IV) in a good-faith belief that the indi-
ful misconduct’’ means an act or omission (5) DISCRIMINATION CLAIMS.—Nothing in
vidual being treated is in need of health care
that is taken— this part shall be construed to affect the ap-
services.
(A) intentionally to achieve a wrongful plicability of any provision of any Federal,
(13) INDIVIDUAL OR ENTITY.—The term ‘‘in-
purpose; State, or Tribal law that creates a cause of
dividual or entity’’ means—
(B) knowingly without legal or factual jus- action for intentional discrimination on the
(A) any natural person, corporation, com-
tification; and basis of race, color, national origin, religion,
pany, trade, business, firm, partnership,
(C) in disregard of a known or obvious risk sex (including pregnancy), disability, genetic
joint stock company, educational institu-
that is so great as to make it highly prob- information, or age.
tion, labor organization, or similar organiza-
able that the harm will outweigh the benefit. (6) MAINTENANCE AND CURE.—Nothing in
tion or group of organizations;
(B) any nonprofit organization, foundation, Subtitle A—Liability Relief this part shall be construed to affect a sea-
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society, or association organized for reli- PART I—LIABILITY LIMITATIONS FOR IN- man’s right to claim maintenance and cure
gious, charitable, educational, or other pur- DIVIDUALS AND ENTITIES ENGAGED IN benefits.
poses; or BUSINESSES, SERVICES, ACTIVITIES, OR (c) STATUTE OF LIMITATIONS.—A
(C) any State, Tribal, or local government. ACCOMMODATIONS coronavirus exposure action may not be
(14) LOCAL GOVERNMENT.—The term ‘‘local SEC. 211. APPLICATION OF PART. commenced in any Federal, State, or Tribal
government’’ means any unit of government (a) CAUSE OF ACTION; TRIBAL SOVEREIGN IM- government court later than 1 year after the
within a State, including a— MUNITY.— date of the actual, alleged, feared, or poten-
(A) county; (1) CAUSE OF ACTION.— tial for exposure to coronavirus.
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August 4, 2020 CONGRESSIONAL RECORD — SENATE S4877
SEC. 212. LIABILITY; SAFE HARBOR. was not complying with the written or pub- construed to affect the applicability of any
(a) REQUIREMENTS FOR LIABILITY FOR EXPO- lished policy at the time of the actual, al- provision of any Federal, State, or Tribal
SURE TO CORONAVIRUS.—Notwithstanding any leged, feared, or potential for exposure to law that imposes stricter limits on damages
other provision of law, and except as other- coronavirus. or liabilities for personal injury caused by,
wise provided in this section, no individual (C) ABSENCE OF A WRITTEN OR PUBLISHED arising out of, or related to an act or omis-
or entity engaged in businesses, services, ac- POLICY.—The absence of a written or pub- sion by a health care provider in the course
tivities, or accommodations shall be liable in lished policy shall not give rise to a pre- of arranging for or providing coronavirus-re-
any coronavirus exposure action unless the sumption that the individual or entity did lated health care services, or otherwise af-
plaintiff can prove by clear and convincing not make reasonable efforts in light of all
evidence that— fords greater protection to defendants in any
the circumstances to comply with the appli-
(1) in engaging in the businesses, services, coronavirus-related medical liability action
cable government standards and guidance for
activities, or accommodations, the indi- than are provided in this part. Any such pro-
purposes of subsection (a)(1).
vidual or entity was not making reasonable vision of Federal, State, or Tribal law shall
(3) TIMING.—For purposes of subsection
efforts in light of all the circumstances to (a)(1), a change to a policy or practice by an be applied in addition to the requirements of
comply with the applicable government individual or entity before or after the ac- this part and not in lieu thereof.
standards and guidance in effect at the time tual, alleged, feared, or potential for expo- (3) ENFORCEMENT ACTIONS.—Nothing in this
of the actual, alleged, feared, or potential for sure to coronavirus, shall not be evidence of part shall be construed to impair, limit, or
exposure to coronavirus; liability for the actual, alleged, feared, or affect the authority of the Federal Govern-
(2) the individual or entity engaged in potential for exposure to coronavirus. ment, or of any State, local, or Tribal gov-
gross negligence or willful misconduct that (c) THIRD PARTIES.—No individual or entity ernment to bring any criminal, civil, or ad-
caused an actual exposure to coronavirus; shall be held liable in a coronavirus exposure ministrative enforcement action against any
and action for the acts or omissions of a third health care provider.
(3) the actual exposure to coronavirus party, unless— (4) DISCRIMINATION CLAIMS.—Nothing in
caused the personal injury of the plaintiff. (1) the individual or entity had an obliga- this part shall be construed to affect the ap-
(b) REASONABLE EFFORTS TO COMPLY.— tion under general common law principles to plicability of any provision of any Federal,
(1) CONFLICTING APPLICABLE GOVERNMENT control the acts or omissions of the third State, or Tribal law that creates a cause of
STANDARDS AND GUIDANCE.— party; or action for intentional discrimination on the
(A) IN GENERAL.—If more than 1 govern- (2) the third party was an agent of the indi-
ment to whose jurisdiction an individual or basis of race, color, national origin, religion,
vidual or entity.
entity is subject issues applicable govern- (d) MITIGATION.—Changes to the policies, sex (including pregnancy), disability, genetic
ment standards and guidance, and the appli- practices, or procedures of an individual or information, or age.
cable government standards and guidance entity for complying with the applicable (5) PUBLIC READINESS AND EMERGENCY PRE-
issued by 1 or more of the governments con- government standards and guidance after the PAREDNESS.—Nothing in this part shall be
flicts with the applicable government stand- time of the actual, alleged, feared, or poten- construed to affect the applicability of sec-
ards and guidance issued by 1 or more of the tial for exposure to coronavirus, shall not be tion 319F–3 of the Public Health Service Act
other governments, the individual or entity considered evidence of liability or culpa- (42 U.S.C. 247d–6d) to any act or omission in-
shall be considered to have made reasonable bility. volving a covered countermeasure, as defined
efforts in light of all the circumstances to PART II—LIABILITY LIMITATIONS FOR in subsection (i) of such section in arranging
comply with the applicable government HEALTH CARE PROVIDERS for or providing coronavirus-related health
standards and guidance for purposes of sub- SEC. 221. APPLICATION OF PART. care services. Nothing in this part shall be
section (a)(1) unless the plaintiff establishes (a) IN GENERAL.— construed to affect the applicability of sec-
by clear and convincing evidence that the in- (1) CAUSE OF ACTION.— tion 319F–4 of the Public Health Service Act
dividual or entity was not making reason- (A) IN GENERAL.—This part creates an ex- (42 U.S.C. 247d–6e).
able efforts in light of all the circumstances clusive cause of action for coronavirus-re- (6) VACCINE INJURY.—To the extent that
to comply with any of the conflicting appli- lated medical liability actions. title XXI of the Public Health Service Act
cable government standards and guidance (B) LIABILITY.—A plaintiff may prevail in a (42 U.S.C. 300aa–1 et seq.) establishes a Fed-
issued by any government to whose jurisdic- coronavirus-related medical liability action eral rule applicable to a civil action brought
tion the individual or entity is subject. only in accordance with the requirements of for a vaccine-related injury or death, this
(B) EXCEPTION.—If mandatory standards this subtitle. part does not affect the application of that
and regulations constituting applicable gov- (C) APPLICATION.—The provisions of this rule to such an action.
ernment standards and guidance issued by part shall apply to—
any government with jurisdiction over the (i) any cause of action that is a (c) STATUTE OF LIMITATIONS.—A
individual or entity conflict with applicable coronavirus-related medical liability action coronavirus-related medical liability action
government standards and guidance that are that was filed before the date of enactment may not be commenced in any Federal,
not mandatory and are issued by any other of this Act and that is pending on such date State, or Tribal government court later than
government with jurisdiction over the indi- of enactment; and 1 year after the date of the alleged harm,
vidual or entity or by the same government (ii) any coronavirus-related medical liabil- damage, breach, or tort, unless tolled for—
that issued the mandatory standards and ity action filed on or after such date of en- (1) proof of fraud;
regulations, the plaintiff may establish that actment. (2) intentional concealment; or
the individual or entity did not make reason- (2) PRESERVATION OF LIABILITY LIMITS AND (3) the presence of a foreign body, which
able efforts in light of all the circumstances DEFENSES.—Except as otherwise explicitly
has no therapeutic or diagnostic purpose or
to comply with the applicable government provided in this part, nothing in this part ex-
standards and guidance for purposes of sub- effect, in the person of the injured person.
pands any liability otherwise imposed or
section (a)(1) by establishing by clear and limits any defense otherwise available under SEC. 222. LIABILITY FOR HEALTH CARE PROFES-
convincing evidence that the individual or Federal, State, or Tribal law. SIONALS AND HEALTH CARE FACILI-
entity was not making reasonable efforts in (3) IMMUNITY.—Nothing in this part abro- TIES DURING CORONAVIRUS PUBLIC
light of all the circumstances to comply with gates the immunity of any State, or waives HEALTH EMERGENCY.
the mandatory standards and regulations to the immunity of any Tribal government. The (a) REQUIREMENTS FOR LIABILITY FOR
which the individual or entity was subject. limitations on liability provided under this CORONAVIRUS-RELATED HEALTH CARE SERV-
(2) WRITTEN OR PUBLISHED POLICY.— part shall control in any action properly
ICES.—Notwithstanding any other provision
(A) IN GENERAL.—If an individual or entity filed against a State or Tribal government
engaged in businesses, services, activities, or of law, and except as provided in subsection
pursuant to a duly executed waiver by the
accommodations maintained a written or State or Tribe of sovereign immunity and (b), no health care provider shall be liable in
published policy on the mitigation of trans- stating claims within the scope of this part. a coronavirus-related medical liability ac-
mission of coronavirus at the time of the ac- (b) PREEMPTION AND SUPERSEDURE.— tion unless the plaintiff can prove by clear
tual, alleged, feared, or potential for expo- (1) IN GENERAL.—Except as described in and convincing evidence—
sure to coronavirus that complied with, or paragraphs (2) through (6), this part pre- (1) gross negligence or willful misconduct
was more protective than, the applicable empts and supersedes any Federal, State, or by the health care provider; and
government standards and guidance to which Tribal law, including statutes, regulations, (2) that the alleged harm, damage, breach,
the individual or entity was subject, the in- rules, or standards that are enacted, promul-
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or tort resulting in the personal injury was
dividual or entity shall be presumed to have gated, or established under common law, re- directly caused by the alleged gross neg-
made reasonable efforts in light of all the lated to recovery for personal injuries caused ligence or willful misconduct.
circumstances to comply with the applicable by, arising out of, or related to an act or
government standards and guidance for pur- omission by a health care provider in the (b) EXCEPTIONS.—For purposes of this sec-
poses of subsection (a)(1). course of arranging for or providing tion, acts, omissions, or decisions resulting
(B) REBUTTAL.—The plaintiff may rebut coronavirus-related health care services. from a resource or staffing shortage shall
the presumption under subparagraph (A) by (2) STRICTER LAWS NOT PREEMPTED OR SU- not be considered willful misconduct or gross
establishing that the individual or entity PERSEDED.—Nothing in this part shall be negligence.
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S4878 CONGRESSIONAL RECORD — SENATE August 4, 2020
PART III—SUBSTANTIVE AND PROCE- (3) JOINT LIABILITY FOR SPECIFIC INTENT OR (1) the complaint shall plead with particu-
DURAL PROVISIONS FOR FRAUD.—Notwithstanding paragraph (1), in larity—
CORONAVIRUS-RELATED ACTIONS GEN- any coronavirus-related action the liability (A) each element of the plaintiff’s claim;
ERALLY of a defendant is joint and several if the trier and
SEC. 231. JURISDICTION. of fact specifically determines that the de- (B) with respect to a coronavirus exposure
(a) JURISDICTION.—The district courts of fendant— action, all places and persons visited by the
the United States shall have concurrent (A) acted with specific intent to injure the person on whose behalf the complaint was
original jurisdiction of any coronavirus-re- plaintiff; or filed and all persons who visited the resi-
lated action. (B) knowingly committed fraud. dence of the person on whose behalf the com-
(b) REMOVAL.— (4) RIGHT TO CONTRIBUTION NOT AFFECTED.— plaint was filed during the 14-day-period be-
(1) IN GENERAL.—A coronavirus-related ac- Nothing in this subsection affects the right, fore the onset of the first symptoms alleg-
tion of which the district courts of the under any other law, of a defendant to con- edly caused by coronavirus, including—
United States have original jurisdiction tribution with respect to another defendant (i) each individual or entity against which
under subsection (a) that is brought in a determined under paragraph (3) to have a complaint is filed, along with the factual
State or Tribal government court may be re- acted with specific intent to injure the plain- basis for the belief that such individual or
moved to a district court of the United tiff or to have knowingly committed fraud. entity was a cause of the personal injury al-
States in accordance with section 1446 of (b) LIMITATIONS ON DAMAGES.—In any leged; and
title 28, United States Code, except that— coronavirus-related action— (ii) every other person or place visited by
(A) notwithstanding subsection (b)(2)(A) of (1) the award of compensatory damages the person on whose behalf the complaint
such section, such action may be removed by shall be limited to economic losses incurred was filed and every other person who visited
any defendant without the consent of all de- as the result of the personal injury, harm, the residence of the person on whose behalf
fendants; and damage, breach, or tort, except that the the complaint was filed during such period,
(B) notwithstanding subsection (b)(1) of court may award damages for noneconomic along with the factual basis for the belief
such section, for any cause of action that is losses if the trier of fact determines that the that these persons and places were not the
a coronavirus-related action that was filed in personal injury, harm, damage, breach, or cause of the personal injury alleged; and
a State court before the date of enactment of tort was caused by the willful misconduct of (2) the complaint shall plead with particu-
this Act and that is pending in such court on the individual or entity; larity each alleged act or omission consti-
such date of enactment, and of which the dis- (2) punitive damages— tuting gross negligence or willful mis-
trict courts of the United States have origi- (A) may be awarded only if the trier of fact conduct that resulted in personal injury,
nal jurisdiction under subsection (a), any de- determines that the personal injury to the harm, damage, breach, or tort.
fendant may file a notice of removal of a plaintiff was caused by the willful mis-
civil action or proceeding within 30 days of conduct of the individual or entity; and (b) SEPARATE STATEMENTS CONCERNING THE
the date of enactment of this Act. (B) may not exceed the amount of compen- NATURE AND AMOUNT OF DAMAGES AND RE-
(2) PROCEDURE AFTER REMOVAL.—Section satory damages awarded; and QUIRED STATE OF MIND.—
1447 of title 28, United States Code, shall (3) the amount of monetary damages (1) NATURE AND AMOUNT OF DAMAGES.—In
apply to any removal of a case under para- awarded to a plaintiff shall be reduced by the any coronavirus-related action filed in or re-
graph (1), except that, notwithstanding sub- amount of compensation received by the moved to a district court of the United
section (d) of such section, a court of appeals plaintiff from another source in connection States in which monetary damages are re-
of the United States shall accept an appeal quested, there shall be filed with the com-
with the personal injury, harm, damage,
from an order of a district court granting or plaint a statement of specific information as
breach, or tort, such as insurance or reim-
denying a motion to remand the case to the to the nature and amount of each element of
bursement by a government.
State or Tribal government court from damages and the factual basis for the dam-
(c) PREEMPTION AND SUPERSEDURE.—
which it was removed if application is made ages calculation.
(1) IN GENERAL.—Except as described in
to the court of appeals of the United States (2) REQUIRED STATE OF MIND.—In any
paragraphs (2) and (3), this section preempts
not later than 10 days after the entry of the coronavirus-related action filed in or re-
and supersedes any Federal, State, or Tribal
order. moved to a district court of the United
law, including statutes, regulations, rules, or
SEC. 232. LIMITATIONS ON SUITS. States in which a claim is asserted on which
standards that are enacted, promulgated, or
(a) JOINT AND SEVERAL LIABILITY LIMITA- the plaintiff may prevail only on proof that
established under common law, related to
TIONS.— the defendant acted with a particular state
joint and several liability, proportionate or
(1) IN GENERAL.—An individual or entity of mind, there shall be filed with the com-
against whom a final judgment is entered in contributory liability, contribution, or the
award of damages for any coronavirus-re- plaint, with respect to each element of that
any coronavirus-related action shall be lia- claim, a statement of the facts giving rise to
ble solely for the portion of the judgment lated action.
(2) STRICTER LAWS NOT PREEMPTED OR SU- a strong inference that the defendant acted
that corresponds to the relative and propor- with the required state of mind.
PERSEDED.—Nothing in this section shall be
tionate responsibility of that individual or
entity. In determining the percentage of re- construed to affect the applicability of any (c) VERIFICATION AND MEDICAL RECORDS.—
sponsibility of any defendant, the trier of provision of any Federal, State, or Tribal (1) VERIFICATION REQUIREMENT.—
fact shall determine that percentage as a law that— (A) IN GENERAL.—The complaint in a
percentage of the total fault of all individ- (A) limits the liability of a defendant in a coronavirus-related action filed in or re-
uals or entities, including the plaintiff, who coronavirus-related action to a lesser degree moved to a district court of the United
caused or contributed to the total loss in- of liability than the degree of liability deter- States shall include a verification, made by
curred by the plaintiff. mined under this section; affidavit of the plaintiff under oath, stating
(2) PROPORTIONATE LIABILITY.— (B) otherwise affords a greater degree of that the pleading is true to the knowledge of
(A) DETERMINATION OF RESPONSIBILITY.—In protection from joint or several liability the deponent, except as to matters specifi-
any coronavirus-related action, the court than is afforded by this section; or cally identified as being alleged on informa-
shall instruct the jury to answer special in- (C) limits the damages that can be recov- tion and belief, and that as to those matters
terrogatories, or, if there is no jury, the ered from a defendant in a coronavirus-re- the plaintiff believes it to be true.
court shall make findings with respect to lated action to a lesser amount of damages (B) IDENTIFICATION OF MATTERS ALLEGED
each defendant, including defendants who than the amount determined under this sec- UPON INFORMATION AND BELIEF.—Any matter
have entered into settlements with the tion. that is not specifically identified as being al-
plaintiff or plaintiffs, concerning the per- (3) PUBLIC READINESS AND EMERGENCY PRE- leged upon the information and belief of the
centage of responsibility, if any, of each de- PAREDNESS.—Nothing in this part shall be plaintiff, shall be regarded for all purposes,
fendant, measured as a percentage of the construed to affect the applicability of sec- including a criminal prosecution, as having
total fault of all individuals or entities who tion 319F–3 of the Public Health Service Act been made upon the knowledge of the plain-
caused or contributed to the loss incurred by (42 U.S.C. 247d–6d) to any act or omission in- tiff.
the plaintiff. volving a covered countermeasure, as defined (2) MATERIALS REQUIRED.—In any
(B) FACTORS FOR CONSIDERATION.—In deter- in subsection (i) of such section in arranging coronavirus-related action filed in or re-
mining the percentage of responsibility for or providing coronavirus-related health moved to a district court of the United
under this subsection, the trier of fact shall care services. Nothing in this part shall be States, the plaintiff shall file with the com-
consider— construed to affect the applicability of sec- plaint—
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(i) the nature of the conduct of each indi- tion 319F–4 of the Public Health Service Act (A) an affidavit by a physician or other
vidual or entity found to have caused or con- (42 U.S.C. 247d–6e). qualified medical expert who did not treat
tributed to the loss incurred by the plaintiff; SEC. 233. PROCEDURES FOR SUIT IN DISTRICT the person on whose behalf the complaint
and COURTS OF THE UNITED STATES. was filed that explains the basis for such
(ii) the nature and extent of the causal re- (a) PLEADING WITH PARTICULARITY.—In any physician’s or other qualified medical ex-
lationship between the conduct of each such coronavirus-related action filed in or re- pert’s belief that such person suffered the
individual or entity and the damages in- moved to a district court of the United personal injury, harm, damage, breach, or
curred by the plaintiff. States— tort alleged in the complaint; and
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August 4, 2020 CONGRESSIONAL RECORD — SENATE S4879
(B) certified medical records documenting ducted pursuant to section 1407(b) of title 28, PART IV—RELATION TO LABOR AND
the alleged personal injury, harm, damage, United States Code, the judge or judges to EMPLOYMENT LAWS
breach, or tort. whom coronavirus-related actions are as- SEC. 241. LIMITATION ON VIOLATIONS UNDER
(d) APPLICATION WITH FEDERAL RULES OF signed by the Judicial Panel on Multidistrict SPECIFIC LAWS.
CIVIL PROCEDURE.—This section applies ex- Litigation may not conduct a trial in a (a) IN GENERAL.—
clusively to any coronavirus-related action coronavirus-related action transferred to or (1) DEFINITION.—In this subsection, the
filed in or removed to a district court of the directly filed in the proceedings unless all term ‘‘covered Federal employment law’’
United States and, except to the extent that parties to that coronavirus-related action means any of the following:
this section requires additional information consent. (A) The Occupational Safety and Health
to be contained in or attached to pleadings, (B) REVIEW OF ORDERS.—The court of ap- Act of 1970 (29 U.S.C. 651 et seq.) (including
nothing in this section is intended to amend peals of the United States having jurisdic- any standard included in a State plan ap-
or otherwise supersede applicable rules of tion over the transferee district court shall
Federal civil procedure. proved under section 18 of such Act (29 U.S.C.
permit an appeal to be taken from any order 667)).
(e) CIVIL DISCOVERY FOR ACTIONS IN DIS- issued in the conduct of coordinated or con-
TRICT COURTS OF THE UNITED STATES.— (B) The Fair Labor Standards Act of 1938
solidated pretrial proceedings conducted pur- (29 U.S.C. 201 et seq.).
(1) TIMING.—Notwithstanding any other
suant to section 1407(b) of title 28, United (C) The Age Discrimination in Employ-
provision of law, in any coronavirus-related
States Code, if the order is applicable to 1 or ment Act of 1967 (29 U.S.C. 621 et seq.).
action filed in or removed to a district court
more coronavirus-related actions and an im- (D) The Worker Adjustment and Retrain-
of the United States, no discovery shall be
mediate appeal from the order may materi- ing Notification Act (29 U.S.C. 2101 et seq.).
allowed before—
ally advance the ultimate termination of 1 (E) Title VII of the Civil Rights Act of 1964
(A) the time has expired for the defendant
or more coronavirus-related actions in the (42 U.S.C. 2000e et seq.).
to answer or file a motion to dismiss; and
proceedings. (F) Title II of the Genetic Information
(B) if a motion to dismiss is filed, the court
has ruled on the motion. SEC. 234. DEMAND LETTERS; CAUSE OF ACTION. Nondiscrimination Act of 2008 (42 U.S.C.
(2) STANDARD.—Notwithstanding any other (a) CAUSE OF ACTION.—If any person trans- 2000ff et seq.).
provision of law, the court in any mits or causes another to transmit in any (G) Title I of the Americans with Disabil-
coronavirus-related action that is filed in or form and by any means a demand for remu- ities Act of 1990 (42 U.S.C. 12111 et seq.).
removed to a district court of the United neration in exchange for settling, releasing, (2) LIMITATION.—Notwithstanding any pro-
States— waiving, or otherwise not pursuing a claim vision of a covered Federal employment law,
(A) shall permit discovery only with re- that is, or could be, brought as part of a in any action, proceeding, or investigation
spect to matters directly related to material coronavirus-related action, the party receiv- resulting from or related to an actual, al-
issues contested in the coronavirus-related ing such a demand shall have a cause of ac- leged, feared, or potential for exposure to
action; and tion for the recovery of damages occasioned coronavirus, or a change in working condi-
(B) may compel a response to a discovery by such demand and for declaratory judg- tions caused by a law, rule, declaration, or
request (including a request for admission, ment in accordance with chapter 151 of title order related to coronavirus, an employer
an interrogatory, a request for production of 28, United States Code, if the claim for which shall not be subject to any enforcement pro-
documents, or any other form of discovery the letter was transmitted was meritless. ceeding or liability under any provision of a
request) under rule 37 of the Federal Rules of covered Federal employment law if the em-
(b) DAMAGES.—Damages available under
Civil Procedure, only if the court finds ployer—
subsection (a) shall include—
that— (A) was relying on and generally following
(1) compensatory damages including costs
(i) the requesting party needs the informa- applicable government standards and guid-
incurred in responding to the demand; and
tion sought to prove or defend as to a mate- ance;
(2) punitive damages, if the court deter-
rial issue contested in such action; and (B) knew of the obligation under the rel-
mines that the defendant had knowledge or
(ii) the likely benefits of a response to such evant provision; and
was reckless with regard to the fact that the
request equal or exceed the burden or cost (C) attempted to satisfy any such obliga-
claim was meritless.
for the responding party of providing such tion by—
(c) ATTORNEY’S FEES AND COSTS.—In an ac- (i) exploring options to comply with such
response. tion commenced under subsection (a), if the
(f) INTERLOCUTORY APPEAL AND STAY OF obligations and with the applicable govern-
plaintiff is a prevailing party, the court ment standards and guidance (such as
DISCOVERY.—The courts of appeals of the
shall, in addition to any judgment awarded through the use of virtual training or remote
United States shall have jurisdiction of an
to a plaintiff, allow a reasonable attorney’s communication strategies);
appeal from a motion to dismiss that is de-
fee to be paid by the defendant, and costs of (ii) implementing interim alternative pro-
nied in any coronavirus-related action in a
the action. tections or procedures; or
district court of the United States. The dis-
trict court shall stay all discovery in such a (d) JURISDICTION.—The district courts of (iii) following guidance issued by the rel-
coronavirus-related action until the court of the United States shall have concurrent evant agency with jurisdiction with respect
appeals has disposed of the appeal. original jurisdiction of all claims arising to any exemptions from such obligation.
(g) CLASS ACTIONS AND MULTIDISTRICT LITI- under subsection (a). (b) PUBLIC ACCOMMODATION LAWS.—
GATION PROCEEDINGS.— (e) ENFORCEMENT BY THE ATTORNEY GEN- (1) DEFINITIONS.—In this subsection—
(1) CLASS ACTIONS.—In any coronavirus-re- ERAL.— (A) the term ‘‘auxiliary aids and services’’
lated action that is filed in or removed to a (1) IN GENERAL.—Whenever the Attorney has the meaning given the term in section 4
district court of the United States and is General has reasonable cause to believe that of the Americans with Disabilities Act of
maintained as a class action or multidistrict any person or group of persons is engaged in 1990 (42 U.S.C. 12103);
litigation— a pattern or practice of transmitting de- (B) the term ‘‘covered public accommoda-
(A) an individual or entity shall only be a mands for remuneration in exchange for set- tion law’’ means—
member of the class if the individual or enti- tling, releasing, waiving, or otherwise not (i) title III of the Americans with Disabil-
ty affirmatively elects to be a member; and pursuing a claim that is, or could be, ities Act of 1990 (42 U.S.C. 12181 et seq.); or
(B) the court, in addition to any other no- brought as part of a coronavirus-related ac- (ii) title II of the Civil Rights Act of 1964
tice required by applicable Federal or State tion and that is meritless, the Attorney Gen- (42 U.S.C. 2000a et seq.);
law, shall direct notice of the action to each eral may commence a civil action in any ap- (C) the term ‘‘place of public accommoda-
member of the class, which shall include— propriate district court of the United States. tion’’ means—
(i) a concise and clear description of the (2) RELIEF.—In a civil action under para- (i) a place of public accommodation, as de-
nature of the action; graph (1), the court may, to vindicate the fined in section 201 of the Civil Rights Act of
(ii) the jurisdiction where the case is pend- public interest, assess a civil penalty against 1964 (42 U.S.C. 2000a); or
ing; and the respondent in an amount not exceeding (ii) a public accommodation, as defined in
(iii) the fee arrangements with class coun- $50,000 per transmitted demand for remu- section 301 of the Americans with Disabil-
sel, including— neration in exchange for settling, releasing, ities Act of 1990 (42 U.S.C. 12181); and
(I) the hourly fee being charged; or waiving or otherwise not pursuing a claim (D) the term ‘‘public health emergency pe-
(II) if it is a contingency fee, the percent- that is meritless. riod’’ means a period designated a public
age of the final award which will be paid, in- (3) DISTRIBUTION OF CIVIL PENALTIES.—If health emergency period by a Federal, State,
cluding an estimate of the total amount that the Attorney General obtains civil penalties or local government authority.
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would be paid if the requested damages were in accordance with paragraph (2), the Attor- (2) ACTIONS AND MEASURES DURING A PUBLIC
to be granted; and ney General shall distribute the proceeds eq- HEALTH EMERGENCY.—
(III) if the cost of the litigation is being fi- uitably among those persons aggrieved by (A) IN GENERAL.—Notwithstanding any
nanced, a description of the financing ar- the respondent’s pattern or practice of trans- other provision of law or regulation, during
rangement. mitting demands for remuneration in ex- any public health emergency period, no per-
(2) MULTIDISTRICT LITIGATIONS.— change for settling, releasing, waiving or son who owns, leases (or leases to), or oper-
(A) TRIAL PROHIBITION.—In any coordinated otherwise not pursuing a claim that is ates a place of public accommodation shall
or consolidated pretrial proceedings con- meritless. be liable under, or found in violation of, any
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S4880 CONGRESSIONAL RECORD — SENATE August 4, 2020
covered public accommodation law for any (5) by adding at the end the following: meaning of section 704 of title 5, United
action or measure taken regarding ‘‘(9) the term ‘covered period’ means the States Code.’’.
coronavirus and that place of public accom- period that— Subtitle C—General Provisions
modation, if such person— ‘‘(A) begins on January 1, 2020; and SEC. 281. SEVERABILITY.
(i) has determined that the significant risk ‘‘(B) ends 90 days after the last date of the If any provision of this title, an amend-
of substantial harm to public health or the COVID–19 national emergency; and ment made by this title, or the application
health of employees cannot be reduced or ‘‘(10) the term ‘COVID–19 national emer- of such a provision or amendment to any
eliminated by reasonably modifying policies, gency’ means the national emergency de- person or circumstance is held to be uncon-
practices, or procedures, or the provision of clared by the President under the National stitutional, the remaining provisions of and
an auxiliary aid or service; or Emergencies Act (50 U.S.C. 1601 et seq.) with amendments made by this title, as well as
(ii) has offered such a reasonable modifica- respect to the Coronavirus Disease 2019
the application of such provision or amend-
tion or auxiliary aid or service but such offer (COVID–19).’’.
ment to any person other than the parties to
has been rejected by the individual protected (b) EXCLUSION FROM DEFINITION OF EMPLOY-
MENT LOSS.—Section 2(b) of the Worker Ad-
the action holding the provision or amend-
by the covered law. ment to be unconstitutional, or to any cir-
(B) REQUIRED WAIVER PROHIBITED.—For pur- justment and Retraining Notification Act (29
U.S.C. 2101(b)) is amended by adding at the cumstances other than those presented in
poses of this subsection, no person who owns, such action, shall not be affected thereby.
leases (or leases to), or operates a place of end the following:
public accommodation shall be required to ‘‘(3) Notwithstanding subsection (a)(6), dur-
ing the covered period an employee may not
SA 2566. Mrs. HYDE–SMITH sub-
waive any measure, requirement, or rec- mitted an amendment intended to be
ommendation that has been adopted in ac- be considered to have experienced an em-
ployment loss if the termination, layoff ex- proposed to amendment SA 2499 pro-
cordance with a requirement or rec-
ommendation issued by the Federal Govern- ceeding 6 months, or reduction in hours of posed by Mr. MCCONNELL to the bill S.
ment or any State or local government with work of more than 50 percent during each 178, to condemn gross human rights
regard to coronavirus, in order to offer such month of any 6-month period involved is a violations of ethnic Turkic Muslims in
result of the COVID–19 national emer- Xinjiang, and calling for an end to ar-
a reasonable modification or auxiliary aids
gency.’’.
and services. bitrary detention, torture, and harass-
Subtitle B—Products
SEC. 242. LIABILITY FOR CONDUCTING TESTING ment of these communities inside and
AT WORKPLACE. SEC. 261. APPLICABILITY OF THE TARGETED LI-
ABILITY PROTECTIONS FOR PAN-
outside China; which was ordered to lie
Notwithstanding any other provision of
Federal, State, or local law, an employer, or DEMIC AND EPIDEMIC PRODUCTS on the table; as follows:
AND SECURITY COUNTERMEASURES At the end, add the following:
other person who hires or contracts with WITH RESPECT TO COVID–19.
other individuals to provide services, con- SEC. 3.EXTENDING MEDICARE TELEHEALTH
(a) IN GENERAL.—Section 319F–3(i)(1) of the FLEXIBILITIES FOR FEDERALLY
ducting testing for coronavirus at the work- Public Health Service Act (42 U.S.C. 247d– QUALIFIED HEALTH CENTERS AND
place shall not be liable for any action or 6d(i)(1)) is amended— RURAL HEALTH CLINICS.
personal injury directly resulting from such (1) in subparagraph (C), by striking ‘‘; or’’ (a) IN GENERAL.—Section 1834(m) of the So-
testing, except for those personal injuries and inserting a semicolon; cial Security Act (42 U.S.C. 1395m(m)) is
caused by the gross negligence or intentional (2) in subparagraph (D), by striking the pe- amended—
misconduct of the employer or other person. riod and inserting ‘‘; or’’; and (1) in paragraph (4)(C)—
SEC. 243. JOINT EMPLOYMENT AND INDE-
(3) by adding at the end the following: (A) in clause (i), in the matter preceding
PENDENT CONTRACTING.
‘‘(E) a drug (as such term is defined in sec- subclause (I), by striking ‘‘and (7)’’ and in-
Notwithstanding any other provision of
tion 201(g)(1) of the Federal Food, Drug, and serting ‘‘(7), and (8)’’; and
Federal or State law, including any covered
Cosmetic Act), biological product (including (B) in clause (ii)(X), by inserting ‘‘or para-
Federal employment law (as defined in sec-
a vaccine) (as such term is defined in section graph (8)(A)(i)’’ before the period; and
tion 241(a)), the Labor Management Rela-
351(i)), or device (as such term is defined in (2) in paragraph (8)—
tions Act, 1947 (29 U.S.C. 141 et seq.), the Em-
section 201(h) of the Federal Food, Drug, and (A) in the paragraph heading by inserting
ployment Retirement Income Security Act
Cosmetic Act) that— ‘‘AND FOR AN ADDITIONAL PERIOD AFTER’’ after
of 1974 (29 U.S.C. 1001 et seq.), and the Family
‘‘(i) is the subject of a notice of use of en- ‘‘DURING ’’;
and Medical Leave Act of 1993 (29 U.S.C. 2601
forcement discretion issued by the Secretary (B) in subparagraph (A)—
et seq.), it shall not constitute evidence of a
if such drug, biological product, or device is (i) in the matter preceding clause (i), by in-
joint employment relationship or employ-
used— serting ‘‘and the 5-year period beginning on
ment relationship for any employer to pro-
‘‘(I) when such notice is in effect; the first day after the end of such emergency
vide or require, for an employee of another
‘‘(II) within the scope of such notice; and period’’ after ‘‘1135(g)(1)(B)’’;
employer or for an independent contractor,
‘‘(III) in compliance with other applicable (ii) in clause (ii), by striking ‘‘and’’ at the
any of the following:
requirements of the Federal Food, Drug, and end;
(1) Coronavirus-related policies, proce-
Cosmetic Act that are not the subject of (iii) by redesignating clause (iii) as clause
dures, or training. such notice;
(2) Personal protective equipment or train- (iv); and
‘‘(ii) in the case of a device, is exempt from (iv) by inserting after clause (ii) the fol-
ing for the use of such equipment. the requirement under section 510(k) of the
(3) Cleaning or disinfecting services or the lowing new clause:
Federal Food, Drug, and Cosmetic Act; or ‘‘(iii) the geographic requirements de-
means for such cleaning or disinfecting. ‘‘(iii) in the case of a drug—
(4) Workplace testing for coronavirus. scribed in paragraph (4)(C)(i) shall not apply
‘‘(I) meets the requirements for marketing with respect to such a telehealth service;
(5) Temporary assistance due to under a final administrative order under sec-
coronavirus, including financial assistance and’’;
tion 505G of the Federal Food, Drug, and Cos- (C) in subparagraph (B)(i)—
or other health and safety benefits. metic Act; or
SEC. 244. EXCLUSION OF CERTAIN NOTIFICATION (i) in the first sentence, by inserting ‘‘and
‘‘(II) is marketed in accordance with sec- the 5-year period beginning on the first day
REQUIREMENTS AS A RESULT OF
tion 505G(a)(3) of such Act.’’. after the end of such emergency period’’ be-
THE COVID–19 PUBLIC HEALTH
(b) CLARIFYING MEANS OF DISTRIBUTION.—
EMERGENCY. fore the period; and
Section 319F–3(a)(5) of the Public Health
(a) DEFINITIONS.—Section 2(a) of the Work- (ii) in the third sentence, by striking ‘‘pro-
Service Act (42 U.S.C. 247d–6d(a)(5)) is
er Adjustment and Retraining Notification gram instruction or otherwise’’ and inserting
amended by inserting ‘‘by, or in partnership
Act (29 U.S.C. 2101(a)) is amended— with, Federal, State, or local public health ‘‘interim final rule, program instruction, or
(1) in paragraph (2), by adding before the officials or the private sector’’ after ‘‘dis- otherwise’’; and
semicolon at the end the following: ‘‘and the tribution’’ the first place it appears. (D) by adding at the end the following new
shutdown, if occurring during the covered (c) NO CHANGE TO ADMINISTRATIVE PROCE- subparagraph:
period, is not a result of the COVID–19 na- DURE ACT APPLICATION TO ENFORCEMENT DIS- ‘‘(C) REQUIREMENT DURING ADDITIONAL PE-
tional emergency’’; CRETION EXERCISE.—Section 319F–3 of the RIOD.—
(2) in paragraph (3)— Public Health Service Act (42 U.S.C. 247d–6d) ‘‘(i) IN GENERAL.—During the 5-year period
(A) in subparagraph (A), by striking ‘‘and’’ is amended by adding at the end the fol- beginning on the first day after the end of
at the end; lowing: the emergency period described in section
(B) in subparagraph (B), by adding ‘‘and’’ ‘‘(j) RULE OF CONSTRUCTION.—Nothing in 1135(g)(1)(B), payment may only be made
SSpencer on DSK126QN23PROD with SENATE
at the end; and this section shall be construed— under this paragraph for a telehealth service
(C) by adding at the end the following: ‘‘(1) to require use of procedures described described in subparagraph (A)(i) that is fur-
‘‘(C) if occurring during the covered period, in section 553 of title 5, United States Code, nished to an eligible telehealth individual if
is not a result of the COVID–19 national for a notice of use of enforcement discretion such service is furnished by a qualified pro-
emergency;’’; for which such procedures are not otherwise vider (as defined in clause (ii)).
(3) in paragraph (7), by striking ‘‘and’’; required; or ‘‘(ii) DEFINITION OF QUALIFIED PROVIDER.—
(4) in paragraph (8), by striking the period ‘‘(2) to affect whether such notice con- For purposes of this subparagraph, the term
at the end and inserting a semicolon; and stitutes final agency action within the ‘qualified provider’ means, with respect to a
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