[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5613 Placed on Calendar Senate (PCS)]






                                                       Calendar No. 719
110th CONGRESS
  2d Session
                                H. R. 5613


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 24, 2008

                    Received and read the first time

                             April 28, 2008

            Read the second time and placed on the calendar

_______________________________________________________________________

                                 AN ACT


 
To extend certain moratoria and impose additional moratoria on certain 
  Medicaid regulations through April 1, 2009, and for other purposes.

    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 ``Protecting the Medicaid Safety Net 
Act of 2008''.

SEC. 2. MORATORIA ON CERTAIN MEDICAID REGULATIONS.

    (a) Extension of Certain Moratoria in Public Law 110-28.--Section 
7002(a)(1) of the U.S. Troop Readiness, Veterans' Care, Katrina 
Recovery, and Iraq Accountability Appropriations Act, 2007 (Public Law 
110-28) is amended--
            (1) by striking ``prior to the date that is 1 year after 
        the date of enactment of this Act'' and inserting ``prior to 
        April 1, 2009'';
            (2) in subparagraph (A), by inserting after ``Federal 
        Regulations)'' the following: ``or in the final regulation, 
        relating to such parts, published on May 29, 2007 (72 Federal 
        Register 29748)''; and
            (3) in subparagraph (C), by inserting before the period at 
        the end the following: ``, including the proposed regulation 
        published on May 23, 2007 (72 Federal Register 28930)''.
    (b) Extension of Certain Moratoria in Public Law 110-173.--Section 
206 of the Medicare, Medicaid, and SCHIP Extension Act of 2007 (Public 
Law 110-173) is amended--
            (1) by striking ``June 30, 2008'' and inserting ``April 1, 
        2009'';
            (2) by inserting ``, including the proposed regulation 
        published on August 13, 2007 (72 Federal Register 45201),'' 
        after ``rehabilitation services''; and
            (3) by inserting ``, including the final regulation 
        published on December 28, 2007 (72 Federal Register 73635),'' 
        after ``school-based transportation''.
    (c) Additional Moratoria.--
            (1) In general.--Notwithstanding any other provision of 
        law, the Secretary of Health and Human Services shall not, 
        prior to April 1, 2009, take any action (through promulgation 
        of regulation, issuance of regulatory guidance, use of Federal 
        payment audit procedures, or other administrative action, 
        policy, or practice, including a Medical Assistance Manual 
        transmittal or letter to State Medicaid directors) to impose 
        any restrictions relating to a provision described in 
        subparagraph (A), (B), or (C) of paragraph (2) if such 
        restrictions are more restrictive in any aspect than those 
        applied to the respective provision as of the date specified in 
        paragraph (3) for such provision.
            (2) Provisions described.--
                    (A) Portion of interim final regulation relating to 
                medicaid treatment of optional case management 
                services.--
                            (i) In general.--Subject to clause (ii), 
                        the provision described in this subparagraph is 
                        the interim final regulation relating to 
                        optional State plan case management services 
                        under the Medicaid program published on 
                        December 4, 2007 (72 Federal Register 68077) in 
                        its entirety.
                            (ii) Exception.--The provision described in 
                        this subparagraph does not include the portion 
                        of such regulation as relates directly to 
                        implementing section 1915(g)(2)(A)(ii) of the 
                        Social Security Act, as amended by section 6052 
                        of the Deficit Reduction Act of 2005 (Public 
                        Law 109-171), through the definition of case 
                        management services and targeted case 
                        management services contained in proposed 
                        section 440.169 of title 42, Code of Federal 
                        Regulations, but only to the extent that such 
                        portion is not more restrictive than the 
                        policies set forth in the Dear State Medicaid 
                        Director letter on case management issued on 
                        January 19, 2001 (SMDL #01-013), and with 
                        respect to community transition case 
                        management, the Dear State Medicaid Director 
                        letter issued on July 25, 2000 (Olmstead Update 
                        3).
                    (B) Proposed regulation relating to redefinition of 
                medicaid outpatient hospital services.--The provision 
                described in this subparagraph is the proposed 
                regulation relating to clarification of outpatient 
                clinic and hospital facility services definition and 
                upper payment limit under the Medicaid program 
                published on September 28, 2007 (72 Federal Register 
                55158) in its entirety.
                    (C) Portion of proposed regulation relating to 
                medicaid allowable provider taxes.--
                            (i) In general.--Subject to clause (ii), 
                        the provision described in this subparagraph is 
                        the final regulation relating to health-care-
                        related taxes under the Medicaid program 
                        published on February 22, 2008 (73 Federal 
                        Register 9685) in its entirety.
                            (ii) Exception.--The provision described in 
                        this subparagraph does not include the portions 
                        of such regulation as relate to the following:
                                    (I) Reduction in threshold.--The 
                                reduction from 6 percent to 5.5 percent 
                                in the threshold applied under section 
                                433.68(f)(3)(i) of title 42, Code of 
                                Federal Regulations, for determining 
                                whether or not there is an indirect 
                                guarantee to hold a taxpayer harmless, 
                                as required to carry out section 
                                1903(w)(4)(C)(ii) of the Social 
                                Security Act, as added by section 403 
                                of the Medicare Improvement and 
                                Extension Act of 2006 (division B of 
                                Public Law 109-432).
                                    (II) Change in definition of 
                                managed care.--The change in the 
                                definition of managed care as proposed 
                                in the revision of section 433.56(a)(8) 
                                of title 42, Code of Federal 
                                Regulations, as required to carry out 
                                section 1903(w)(7)(A)(viii) of the 
                                Social Security Act, as amended by 
                                section 6051 of the Deficit Reduction 
                                Act of 2005 (Public Law 109-171).
            (3) Date specified.--The date specified in this paragraph 
        for the provision described in--
                    (A) subparagraph (A) of paragraph (2) is December 
                3, 2007;
                    (B) subparagraph (B) of such paragraph is September 
                27, 2007; or
                    (C) subparagraph (C) of such paragraph is February 
                21, 2008.

SEC. 3. FUNDS TO REDUCE MEDICAID FRAUD AND ABUSE.

    (a) In General.--For purposes of reducing fraud and abuse in the 
Medicaid program under title XIX of the Social Security Act, there is 
appropriated to the Secretary of Health and Human Services, out of any 
money in the Treasury not otherwise appropriated, $25,000,000, for each 
fiscal year (beginning with fiscal year 2009). Amounts appropriated 
under this section shall remain available for expenditure until 
expended and shall be in addition to any other amounts appropriated or 
made available to the Secretary for such purposes with respect to the 
Medicaid program.
    (b) Annual Report.--Not later than September 30 of 2009 and of each 
subsequent year, the Secretary of Health and Human Services shall 
submit to the Committee on Energy and Commerce of the House of 
Representatives and the Committee on Finance of the Senate a report on 
the activities (and the results of such activities) funded under 
subsection (a) to reduce waste, fraud, and abuse in the Medicaid 
program under title XIX of the Social Security Act during the previous 
12 month period, including the amount of funds appropriated under such 
subsection (a) for each such activity and an estimate of the savings to 
the Medicaid program resulting from each such activity.

SEC. 4. STUDY AND REPORTS TO CONGRESS.

    (a) Secretarial Report Identifying Problems.--Not later than July 
1, 2008, the Secretary of Health and Human Services shall submit to the 
Committee on Energy and Commerce of the House of Representatives and 
the Committee on Finance of the Senate a report that--
            (1) outlines the specific problems the Medicaid regulations 
        referred to in the amendments made by subsections (a) and (b) 
        of section 2 and in the provisions described in subsection 
        (c)(2) of such section were intended to address;
            (2) detailing how these regulations were designed to 
        address these specific problems; and
            (3) cites the legal authority for such regulations.
    (b) Independent Comprehensive Study and Report.--
            (1) In general.--Not later than July 1, 2008, the Secretary 
        of Health and Human Services shall enter into a contract with 
        an independent organization for the purpose of--
                    (A) producing a comprehensive report on the 
                prevalence of the problems outlined in the report 
                submitted under subsection (a);
                    (B) identifying strategies in existence to address 
                these problems; and
                    (C) assessing the impact of each regulation 
                referred to in such subsection on each State and the 
                District of Columbia.
            (2) Additional matter.--The report under paragraph (1) 
        shall also include--
                    (A) an identification of which claims for items and 
                services (including administrative activities) under 
                title XIX of the Social Security Act are not processed 
                through systems described in section 1903(r) of such 
                Act;
                    (B) an examination of the reasons why these claims 
                for such items and services are not processed through 
                such systems; and
                    (C) recommendations on actions by the Federal 
                government and the States that can make claims for such 
                items and services more accurate and complete 
                consistent with such title.
            (3) Deadline.--The report under paragraph (1) shall be 
        submitted to the Committee on Energy and Commerce of the House 
        of Representatives and the Committee on Finance of the Senate 
        not later than March 1, 2009.
            (4) Cooperation of states.--If the Secretary of Health and 
        Human Services determines that a State or the District of 
        Columbia has not cooperated with the independent organization 
        for purposes of the report under this subsection, the Secretary 
        shall reduce the amount paid to the State or District under 
        section 1903(a) of the Social Security Act (42 U.S.C. 1396b(a)) 
        by $25,000 for each day on which the Secretary determines such 
        State or District has not so cooperated. Such reduction shall 
        be made through a process that permits the State or District to 
        challenge the Secretary's determination.
    (c) Funding.--
            (1) In general.--Out of any money in the Treasury of the 
        United States not otherwise appropriated, there are 
        appropriated to the Secretary without further appropriation, 
        $5,000,000 to carry out this section.
            (2) Availability; amounts in addition to other amounts 
        appropriated for such activities.--Amounts appropriated 
        pursuant to paragraph (1) shall--
                    (A) remain available until expended; and
                    (B) be in addition to any other amounts 
                appropriated or made available to the Secretary of 
                Health and Human Services with respect to the Medicaid 
                program.

SEC. 5. ASSET VERIFICATION THROUGH ACCESS TO INFORMATION HELD BY 
              FINANCIAL INSTITUTIONS.

    (a) Addition of Authority.--Title XIX of the Social Security Act is 
amended by inserting after section 1939 the following new section:

 ``asset verification through access to information held by financial 
                              institutions

    ``Sec. 1940.  (a) Implementation.--
            ``(1) In general.--Subject to the provisions of this 
        section, each State shall implement an asset verification 
        program described in subsection (b), for purposes of 
        determining or redetermining the eligibility of an individual 
        for medical assistance under the State plan under this title.
            ``(2) Plan submittal.--In order to meet the requirement of 
        paragraph (1), each State shall--
                    ``(A) submit not later than a deadline specified by 
                the Secretary consistent with paragraph (3), a State 
                plan amendment under this title that describes how the 
                State intends to implement the asset verification 
                program; and
                    ``(B) provide for implementation of such program 
                for eligibility determinations and redeterminations 
                made on or after 6 months after the deadline 
                established for submittal of such plan amendment.
            ``(3) Phase-in.--
                    ``(A) In general.--
                            ``(i) Implementation in current asset 
                        verification demo states.--The Secretary shall 
                        require those States specified in subparagraph 
                        (C) (to which an asset verification program has 
                        been applied before the date of the enactment 
                        of this section) to implement an asset 
                        verification program under this subsection by 
                        the end of fiscal year 2009.
                            ``(ii) Implementation in other states.--The 
                        Secretary shall require other States to submit 
                        and implement an asset verification program 
                        under this subsection in such manner as is 
                        designed to result in the application of such 
                        programs, in the aggregate for all such other 
                        States, to enrollment of approximately, but not 
                        less than, the following percentage of 
                        enrollees, in the aggregate for all such other 
                        States, by the end of the fiscal year involved:
                                    ``(I) 12.5 percent by the end of 
                                fiscal year 2009.
                                    ``(II) 25 percent by the end of 
                                fiscal year 2010.
                                    ``(III) 50 percent by the end of 
                                fiscal year 2011.
                                    ``(IV) 75 percent by the end of 
                                fiscal year 2012.
                                    ``(V) 100 percent by the end of 
                                fiscal year 2013.
                    ``(B) Consideration.--In selecting States under 
                subparagraph (A)(ii), the Secretary shall consult with 
                the States involved and take into account the 
                feasibility of implementing asset verification programs 
                in each such State.
                    ``(C) States specified.--The States specified in 
                this subparagraph are California, New York, and New 
                Jersey.
                    ``(D) Construction.--Nothing in subparagraph 
                (A)(ii) shall be construed as preventing a State from 
                requesting, and the Secretary approving, the 
                implementation of an asset verification program in 
                advance of the deadline otherwise established under 
                such subparagraph.
            ``(4) Exemption of territories.--This section shall only 
        apply to the 50 States and the District of Columbia.
    ``(b) Asset Verification Program.--
            ``(1) In general.--For purposes of this section, an asset 
        verification program means a program described in paragraph (2) 
        under which a State--
                    ``(A) requires each applicant for, or recipient of, 
                medical assistance under the State plan under this 
                title on the basis of being aged, blind, or disabled to 
                provide authorization by such applicant or recipient 
                (and any other person whose resources are material to 
                the determination of the eligibility of the applicant 
                or recipient for such assistance) for the State to 
                obtain (subject to the cost reimbursement requirements 
                of section 1115(a) of the Right to Financial Privacy 
                Act but at no cost to the applicant or recipient) from 
                any financial institution (within the meaning of 
                section 1101(1) of such Act) any financial record 
                (within the meaning of section 1101(2) of such Act) 
                held by the institution with respect to the applicant 
                or recipient (and such other person, as applicable), 
                whenever the State determines the record is needed in 
                connection with a determination with respect to such 
                eligibility for (or the amount or extent of) such 
                medical assistance; and
                    ``(B) uses the authorization provided under 
                subparagraph (A) to verify the financial resources of 
                such applicant or recipient (and such other person, as 
                applicable), in order to determine or redetermine the 
                eligibility of such applicant or recipient for medical 
                assistance under the State plan.
            ``(2) Program described.--A program described in this 
        paragraph is a program for verifying individual assets in a 
        manner consistent with the approach used by the Commissioner of 
        Social Security under section 1631(e)(1)(B)(ii).
    ``(c) Duration of Authorization.--Notwithstanding section 
1104(a)(1) of the Right to Financial Privacy Act, an authorization 
provided to a State under subsection (b)(1) shall remain effective 
until the earliest of--
            ``(1) the rendering of a final adverse decision on the 
        applicant's application for medical assistance under the 
        State's plan under this title;
            ``(2) the cessation of the recipient's eligibility for such 
        medical assistance; or
            ``(3) the express revocation by the applicant or recipient 
        (or such other person described in subsection (b)(1), as 
        applicable) of the authorization, in a written notification to 
        the State.
    ``(d) Treatment of Right to Financial Privacy Act Requirements.--
            ``(1) An authorization obtained by the State under 
        subsection (b)(1) shall be considered to meet the requirements 
        of the Right to Financial Privacy Act for purposes of section 
        1103(a) of such Act, and need not be furnished to the financial 
        institution, notwithstanding section 1104(a) of such Act.
            ``(2) The certification requirements of section 1103(b) of 
        the Right to Financial Privacy Act shall not apply to requests 
        by the State pursuant to an authorization provided under 
        subsection (b)(1).
            ``(3) A request by the State pursuant to an authorization 
        provided under subsection (b)(1) is deemed to meet the 
        requirements of section 1104(a)(3) of the Right to Financial 
        Privacy Act and of section 1102 of such Act, relating to a 
        reasonable description of financial records.
    ``(e) Required Disclosure.--The State shall inform any person who 
provides authorization pursuant to subsection (b)(1)(A) of the duration 
and scope of the authorization.
    ``(f) Refusal or Revocation of Authorization.--If an applicant for, 
or recipient of, medical assistance under the State plan under this 
title (or such other person described in subsection (b)(1), as 
applicable) refuses to provide, or revokes, any authorization made by 
the applicant or recipient (or such other person, as applicable) under 
subsection (b)(1)(A) for the State to obtain from any financial 
institution any financial record, the State may, on that basis, 
determine that the applicant or recipient is ineligible for medical 
assistance.
    ``(g) Use of Contractor.--For purposes of implementing an asset 
verification program under this section, a State may select and enter 
into a contract with a public or private entity meeting such criteria 
and qualifications as the State determines appropriate, consistent with 
requirements in regulations relating to general contracting provisions 
and with section 1903(i)(2). In carrying out activities under such 
contract, such an entity shall be subject to the same requirements and 
limitations on use and disclosure of information as would apply if the 
State were to carry out such activities directly.
    ``(h) Technical Assistance.--The Secretary shall provide States 
with technical assistance to aid in implementation of an asset 
verification program under this section.
    ``(i) Reports.--A State implementing an asset verification program 
under this section shall furnish to the Secretary such reports 
concerning the program, at such times, in such format, and containing 
such information as the Secretary determines appropriate.
    ``(j) Treatment of Program Expenses.--Notwithstanding any other 
provision of law, reasonable expenses of States in carrying out the 
program under this section shall be treated, for purposes of section 
1903(a), in the same manner as State expenditures specified in 
paragraph (7) of such section.''.
    (b) State Plan Requirements.--Section 1902(a) of such Act (42 
U.S.C. 1396a(a)) is amended--
            (1) in paragraph (69) by striking ``and'' at the end;
            (2) in paragraph (70) by striking the period at the end and 
        inserting ``; and''; and
            (3) by inserting after paragraph (70), as so amended, the 
        following new paragraph:
            ``(71) provide that the State will implement an asset 
        verification program as required under section 1940.''.
    (c) Withholding of Federal Matching Payments for Noncompliant 
States.--Section 1903(i) of such Act (42 U.S.C. 1396b(i)) is amended--
            (1) in paragraph (22) by striking ``or'' at the end;
            (2) in paragraph (23) by striking the period at the end and 
        inserting ``; or''; and
            (3) by adding after paragraph (23) the following new 
        paragraph:
            ``(24) if a State is required to implement an asset 
        verification program under section 1940 and fails to implement 
        such program in accordance with such section, with respect to 
        amounts expended by such State for medical assistance for 
        individuals subject to asset verification under such section, 
        unless--
                    ``(A) the State demonstrates to the Secretary's 
                satisfaction that the State made a good faith effort to 
                comply;
                    ``(B) not later than 60 days after the date of a 
                finding that the State is in noncompliance, the State 
                submits to the Secretary (and the Secretary approves) a 
                corrective action plan to remedy such noncompliance; 
                and
                    ``(C) not later than 12 months after the date of 
                such submission (and approval), the State fulfills the 
                terms of such corrective action plan.''.
    (d) Repeal.--Section 4 of Public Law 110-90 is repealed.

SEC. 6. ADJUSTMENT TO PAQI FUND.

    Section 1848(l)(2) of the Social Security Act (42 U.S.C. 1395w-
4(l)(2)), as amended by section 101(a)(2) of the Medicare, Medicaid, 
and SCHIP Extension Act of 2007 (Public Law 110-173), is amended--
            (1) in subparagraph (A)(i)--
                    (A) in subclause (III), by striking 
                ``$4,960,000,000'' and inserting ``$3,790,000,000''; 
                and
                    (B) by adding at the end the following new 
                subclause:
                                    ``(IV) For expenditures during 
                                2014, an amount equal to 
                                $3,690,000,000.'';
            (2) in subparagraph (A)(ii), by adding at the end the 
        following new subclause:
                                    ``(IV) 2014.--The amount available 
                                for expenditures during 2014 shall only 
                                be available for an adjustment to the 
                                update of the conversion factor under 
                                subsection (d) for that year.''; and
            (3) in subparagraph (B)--
                    (A) in clause (ii), by striking ``and'' at the end;
                    (B) in clause (iii), by striking the period at the 
                end and inserting ``; and''; and
                    (C) by adding at the end the following new clause:
                            ``(iv) 2014 for payment with respect to 
                        physicians' services furnished during 2014.''.

            Passed the House of Representatives April 23, 2008.

            Attest:

                                            LORRAINE C. MILLER,

                                                                 Clerk.
                                                       Calendar No. 719

110th CONGRESS

  2d Session

                               H. R. 5613

_______________________________________________________________________

                                 AN ACT

To extend certain moratoria and impose additional moratoria on certain 
  Medicaid regulations through April 1, 2009, and for other purposes.

_______________________________________________________________________

                             April 28, 2008

            Read the second time and placed on the calendar