[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3300 Introduced in House (IH)]







106th CONGRESS
  1st Session
                                H. R. 3300

  To provide for a Doctors' Bill of Rights under the Medicare Program.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           November 10, 1999

  Ms. Berkley (for herself and Mr. Fletcher) introduced the following 
bill; which was referred to the Committee on Commerce, and in addition 
  to the Committee on Ways and Means, for a period to be subsequently 
   determined by the Speaker, in each case for consideration of such 
 provisions as fall within the jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL


 
  To provide for a Doctors' Bill of Rights under the Medicare Program.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Doctors' Bill of Rights Act of 
1999''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) Congress should focus more resources on and work with 
        physicians and providers to combat fraud in the medicare 
        program. Although the Federal government has reduced improper 
        fee-for-service payments from 14 percent (or $23 billion) from 
        fiscal year 1996 to 7.1 percent (or $12.6 billion) in fiscal 
        year 1998, Congress must work hard to continue this trend.
            (2) The overwhelming majority of physicians in the United 
        States are law-abiding citizens who provide important services 
        and care to patients each day.
            (3) Congress greatly appreciates the important role 
        physicians play in providing high-quality health care to our 
        nation's senior citizens under the medicare program.
            (4) Due to the overly complex nature of medicare 
        regulations and the risk of being the subject of an aggressive 
        government investigation, many physicians are leaving the 
        medicare program.
            (5) The Health Care Financing Administration (HCFA), and 
        especially carriers administering the medicare program, should 
        focus more attention on educational approaches to reducing 
        billing error rates.
            (6) Keeping track of the morass of medicare regulations 
        detracts from the time that physicians have to treat patients.

SEC. 3. DEFINITIONS.

    For purposes of this Act:
            (1) Physician.--The term ``physician'' has the meaning 
        given such term in section 1861(r) of the Social Security Act 
        (42 U.S.C. 1395x(r)).
            (2) Fiscal intermediary.--The term ``fiscal intermediary'' 
        means a fiscal intermediary (as defined in section 1816(a) of 
        the Social Security Act (42 U.S.C. 1395h(a))) with an agreement 
        under section 1816 of such Act to administer benefits under 
        part A or part B of such title.
            (3) Carrier.--The term ``carrier'' means a carrier (as 
        defined in section 1842(f) of the Social Security Act (42 
        U.S.C. 1395u(f))) with a contract under title XVIII of such Act 
        to administer benefits under part B of such title.
            (4) Secretary.--The term ``Secretary'' means the Secretary 
        of Health and Human Services.
            (5) HCFA.--The term ``HCFA'' means the Health Care 
        Financing Administration.
            (6) Medicare program.--The term ``medicare program'' means 
        the program under title XVIII of the Social Security Act.
            (7) Medicare integrity program.--The term ``medicare 
        integrity program'' means the program under section 1893 of the 
        Social Security Act (42 U.S.C. 1395ddd).

SEC. 3. EDUCATION.

    (a) Use of Funds.--
            (1) Carriers.--Each carrier shall devote at least 3 percent 
        of the funds provided to it under the medicare program each 
        year (beginning with 2000) toward education of physicians to 
        ensure that information about the operation of the medicare 
        program is properly disseminated.
            (2) Fiscal intermediaries.--Each fiscal intermediary shall 
        devote at least 3 percent of the funds provided it under the 
        medicare program (beginning with 2000) toward education of 
        physicians to ensure that information about the operation of 
        the medicare program is properly disseminated.
            (3) Medicare integrity program.--The Secretary shall ensure 
        that 10 percent of the funds expended under the medicare 
        integrity program each year (beginning with 2000) are used for 
        education of physicians to ensure that information about the 
        operation of the medicare program is properly disseminated.
            (4) Purpose.--The purpose of funding under this subsection 
        is to ensure that physicians learn of new changes to medicare 
        laws and regulations in a timely manner.
            (5) Construction.--Education attendance lists may not be 
        used as evidence of possible wrongdoings by physicians under 
        the medicare program and may not lead to fraud investigations 
        under that program.
    (b) Right to Information.--Physicians have the right to timely and 
accurate information about changes and modifications to local carrier 
guidelines under the medicare program. Each physician who so desires 
have the right to receive this information by electronic or certified 
mail (in addition to check stuffers, monthly carrier bulletins, the 
annual ``Dear Doctor'' letter, individual letters, seminars, and other 
means).
    (c) Additional Educational Outreach.--The Secretary shall initiate 
additional educational outreach for physicians for medicare coverage 
areas that have the most frequent billing errors. Such outreach shall 
include issue-specific e-mails, faxes, mailings, and telephone 
calls. If, within 9 months after the date that the additional outreach 
is initiated, a carrier finds that no evidence exists that physician 
billing errors under the medicare program have lessened, then the 
carrier shall complete an in-person visit to relevant physician 
offices.
    (d) Right to Telephone Conversation.--A physician may request a 
telephone conversation or in-person visit with a carrier, without being 
suspected of fraud, regarding questions about billing practices under 
the medicare program.

SEC. 4. INFORMATION.

    (a) Straight Answers.--Carriers shall do their utmost to provide 
physicians with one, straight and correct answer regarding billing 
questions under the medicare program.
    (b) Written Requests.--
            (1) In general.--The Secretary shall establish a process 
        under which a physician may request, in writing from a carrier, 
        assistance in addressing questionable codes and procedures 
        under the medicare program and then the carrier shall respond 
        in writing within 30 business days respond with the correct 
        billing or procedural answer.
            (2) Use of written statement.--
                    (A) In general.--Subject to subparagraph (B), a 
                written statement under paragraph (1) may be used as 
                proof against a future audit or overpayment under the 
                medicare program.
                    (B) Limit on application.--Subparagraph (A) shall 
                not apply retroactively and shall not apply to cases of 
                fraudulent billing.
    (c) Restoration of Toll-Free Hotline.--
            (1) In general.--HCFA shall restore the toll-free telephone 
        hotline so that physicians may call for information and 
        questions about the medicare program.
            (2) Authorization of appropriations.--There are authorized 
        to be appropriated such sums as may be necessary to carry out 
        paragraph (1).
    (d) Right to Review of Claims.--
            (1) Right to submit.--Physicians have the right to submit 
        claims (but not to exceed 15 claims in any year) under the 
        medicare program that have already been acted upon to the 
        carrier for review and analysis by the carrier.
            (2) Right to repay without penalty.--In the case of such a 
        claim, if the carrier determines that the physician--
                    (A) was overpaid, the physician has the opportunity 
                to repay the claim without penalty; or
                    (B) was underpaid, the carrier shall make the 
                appropriate payment adjustment.
            (3) Not targeted.--Regardless of what the determination may 
        be in the case of such a claim, a physician's submission of 
        such a claim for further review and analysis shall not subject 
        the physician to being targeted for fraud, unless there is a 
        documented history of fraud or abuse on the part of the 
        physician.

SEC. 4. POLICY DEVELOPMENT REGARDING E&M GUIDELINES.

    (a) In General.--HCFA may not implement any new evaluation and 
management guidelines (in this section referred to as ``E&M 
guidelines'') under the medicare program, unless HCFA--
            (1) has provided for an assessment of the proposed 
        guidelines by physicians;
            (2) has established a plan that contains specific goals, 
        including a schedule, for improving participation of 
        physicians;
            (3) has carried out a minimum of 4 pilot projects 
        consistent with subsection (b) in at least 4 different HCFA 
        regions (to be specified by the Secretary) to test such 
        guidelines; and
            (4) finds that the objectives described in subsection (c) 
        will be met in the implementation of such guidelines.
    (b) Pilot Projects.--
            (1) Length and consultation.--Each pilot project under this 
        subsection shall--
                    (A) be of sufficient length to allow for 
                preparatory physician and carrier education, analysis, 
                and use and assessment of potential E&M guidelines; and
                    (B) be conducted, throughout the planning and 
                operational stages of the project, in consultation with 
                national and State medical societies.
            (2) Peer review and rural pilot projects.--Of the pilot 
        projects conducted under this subsection--
                    (A) at least one shall focus on a peer review 
                method by physicians which evaluates medical record 
                information for statistical outlier services relative 
                to definitions and guidelines published in the CPT 
                book, instead of an approach using the review of 
                randomly selected medical records using non-clinical 
                personnel; and
                    (B) at least one shall be conducted for services 
                furnished in a rural area.
            (3) Study of impact.--Each pilot project shall examine the 
        effect of the E&M guidelines on--
                    (A) different types of physician practices, such as 
                large and small groups; and
                    (B) the costs of compliance, and patient and 
                physician satisfaction.
            (4) Report on how met objectives.--HCFA shall submit a 
        report to the Committees on Commerce and Ways and Means of the 
        House of Representatives, the Committee on Finance of the 
        Senate, and the Practicing Physicians Advisory Council, six 
        months after the conclusion of the pilot projects. Such report 
        shall include the extent to which the pilot projects met the 
        objectives specified in subsection (c).
    (c) Objectives for E&M Guidelines.--The objectives for E&M 
guidelines specified in this subsection are as follows (relative to the 
E&M guidelines and review policies in effect as of the date of the 
enactment of this Act):
            (1) Enhancing clinically relevant documentation needed to 
        accurately code and assess coding levels accurately.
            (2) Reducing administrative burdens.
            (3) Decreasing the level of non-clinically pertinent and 
        burdensome documentation time and content in the record.
            (4) Increased accuracy by carrier reviewers.
            (5) Education of both physicians and reviewers.
            (6) Appropriate use of E&M codes by physicians and their 
        staffs.
            (7) The extent to which the tested E&M documentation 
        guidelines substantially adhere to the CPT coding rules.

SEC. 5. OVERPAYMENTS.

    (a) Individualized Notice.--If a carrier proceeds with a post-
payment audit of a physician under the medicare program, the carrier 
shall provide the physician with an individualized notice of billing 
problems, such as a personal visit or carrier-to-physician telephone 
conversation during normal working hours, within 3 months of initiating 
such audit. The notice should include suggestions to the physician on 
how the billing problem may be remedied.
    (b) Repayment of Overpayments Without Penalty.--The Secretary shall 
permit physicians to repay medicare overpayments within 3 months 
without penalty or interest and without threat of denial of other 
claims based upon extrapolation. If a physician should discover an 
overpayment before a carrier notifies the physician of the error, the 
physician may reimburse the medicare program without penalty and the 
Secretary may not audit or target the physician on the basis of such 
repayment, unless other evidence of fraudulent billing exists.
    (c) Treatment of First-Time Billing Errors.--If a physician's 
medicare billing error was a first-time error and the physician has not 
previously been the subject of a post-payment audit, the carrier may 
not assess a fine through extrapolation of such an error to other 
claims, unless the physician has submitted a fraudulent claim.
    (d) Timely Notice of Problem Claims Before Using Extrapolation.--A 
carrier may seek reimbursement or penalties against a physician based 
on extrapolation of a medicare claim only if the carrier has informed 
the physician of potential problems with the claim within one year 
after the date the claim was submitted for reimbursement.
    (e) Submission of Additional Information.--A physician may submit 
additional information and documentation to dispute a carrier's charges 
of overpayment without waiving the physician's right to a hearing by an 
administrative law judge.
    (f) Limitation on Delay in Payment.--Following a post-payment 
audit, a carrier that is conducting a pre-payment screen on a physician 
service under the medicare program may not delay reimbursements for 
more than one month and as soon as the physician submits a corrected 
claim, the carrier shall eliminate application of such a pre-payment 
screen.

SEC. 6. ENFORCEMENT PROVISIONS.

    If a physician is suspected of fraud or wrongdoing in the medicare 
program, inspectors associated with the Office of Inspector General of 
the Department of Health and Human Services--
            (1) may not enter the physician's private office with a gun 
        or deadly weapon to make an arrest; and
            (2) may not make such an arrest without a valid warrant of 
        arrest, unless the physician is fleeing or deemed dangerous.
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