[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3220 Introduced in House (IH)]

111th CONGRESS
  1st Session
                                H. R. 3220

  To amend title XVIII of the Social Security Act to reform Medicare 
      coverage and reimbursement for home oxygen therapy services.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                             July 15, 2009

Mr. Ross (for himself and Mr. Meek of Florida) introduced the following 
 bill; which was referred to the Committee on Energy and 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 amend title XVIII of the Social Security Act to reform Medicare 
      coverage and reimbursement for home oxygen therapy services.

    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 ``Medicare Home Oxygen Therapy Act of 
2009''.

SEC. 2. TREATMENT OF HOME OXYGEN THERAPY SEPARATE FROM DURABLE MEDICAL 
              EQUIPMENT.

    (a) Elimination From Definition of Durable Medical Equipment.--
Section 1861(n) of the Social Security Act (42 U.S.C. 1395x(n)) is 
amended--
            (1) by striking ``oxygen tents,''; and
            (2) by adding at the end the following new sentence: ``Such 
        term does not include oxygen and home oxygen therapy 
        services.''.
    (b) Conforming Amendments.--
            (1) Section 1834(a) of the Social Security Act (42 U.S.C. 
        1395m(a)) is amended--
                    (A) by striking paragraphs (5) and (9);
                    (B) in paragraph (6), by striking ``(4), or (5)'' 
                and inserting ``or (4)''; and
                    (C) in paragraph (21)(B), by striking ``oxygen and 
                oxygen equipment,''.
            (2) Section 1847(a) of such Act (42 U.S.C. 1395w-3(a)) is 
        amended--
                    (A) in paragraph (1)(D)(i)--
                            (i) in subclause (II), by striking ``and 
                        (IV)'' and inserting ``, (IV), and (V)'';
                            (ii) by striking ``and'' at the end of 
                        subclause (III);
                            (iii) by striking the period at the end of 
                        subclause (IV) and inserting ``; and''; and
                            (iv) by adding at the end the following new 
                        subclause:
                                    ``(V) the Secretary shall exclude 
                                oxygen and oxygen equipment.'';
                    (B) in paragraph (2), by inserting ``(and do not 
                include oxygen and oxygen equipment)'' after ``are the 
                following''; and
                    (C) in paragraph (4)--
                            (i) by striking ``and oxygen'' in the 
                        heading;
                            (ii) by striking ``and in the case of 
                        payment for oxygen under section 1834(a)(5)''; 
                        and
                            (iii) by striking ``and supply arrangements 
                        with oxygen suppliers''.

SEC. 3. COVERAGE OF HOME OXYGEN THERAPY SERVICES.

    (a) Definitions.--Section 1861 of the Social Security Act is 
amended by adding at the end the following new subsection:

                     ``Home Oxygen Therapy Services

    ``(hhh)(1) In General.--The term `home oxygen therapy services' 
means services and supplies furnished by a qualified home oxygen 
therapy provider and includes, with respect to an individual, the 
following furnished by home oxygen therapy provider (as defined in 
paragraph (2)).
            ``(A) Conducting an initial evaluation of the individual 
        using a uniform Oxygen Patient Evaluation Form developed, in 
        consultation with the Home Oxygen Therapy Advisory Committee, 
        by the Secretary.
            ``(B) Providing written and verbal individual and caregiver 
        education about home oxygen therapy, stationary and portable 
        oxygen therapy options, and oxygen safety (such as evaluating 
        the home environment for safety risks or hazards, including 
        home fire and fall prevention).
            ``(C) Providing appropriate delivery, set-up, and 
        coordination of oxygen (such as delivery of oxygen technology 
        to hospital prior to discharge, delivery and set-up of 
        equipment in the home), as needed, in a timely manner as agreed 
        upon by the individual or caregiver (or both), the home oxygen 
        therapy provider, and the physician.
            ``(D) Evaluating the individual's ability to operate the 
        oxygen equipment safely and effectively.
            ``(E) Educating and, when necessary, providing assistance 
        with infection control, focusing on keeping oxygen equipment 
        from leading to infection.
            ``(F) Providing equipment-related services consistent with 
        the manufacturer specifications and in accordance with all 
        Federal, State, and local laws and regulations, which may 
        include checking oxygen system purity levels and flow rates, 
        changing and cleaning filters, and assuring the integrity of 
        alarms and back-up systems.
            ``(G) Monitoring visits by appropriately trained personnel 
        to evaluate all aspects of the services being provided to the 
        individual by the home oxygen therapy provider, including 
        ensuring that individual is following the prescribed plan of 
        care.
            ``(H) Documenting exception reporting by the home oxygen 
        therapy provider when changes occur in the individual's 
        compliance with the plan of care to the prescribing physician.
            ``(I) Providing, as needed, continued education regarding 
        appropriate home oxygen equipment maintenance practices and 
        performance by the individual and caregivers.
            ``(J) Implementing all home oxygen therapy services that 
        are prescribed by the physician's plan of care.
            ``(K) Providing, as needed, appropriate home oxygen 
        equipment, supplies, including supplemental supplies and 
        emergency oxygen back-ups as appropriate.
            ``(L) Providing 24-hour on-call coverage to respond to 
        individual's needs with home oxygen therapy.
            ``(M) Assisting the individual with the coordination of 
        oxygen equipment, services, and providers if the individual 
        travels outside of the provider's service area.
If an individual relocates permanently, the new home oxygen therapy 
provider for the individual shall assume responsibility for billing the 
Medicare program directly. The Secretary is directed to determine which 
of these covered services must be performed in person.
    ``(2) Qualified Home Oxygen Therapy Provider.--
            ``(A) The term `qualified home oxygen therapy provider' 
        means an entity that provides home oxygen therapy services and 
        home oxygen equipment--
                    ``(i) furnishes home oxygen therapy services in 
                compliance with applicable laws, rules, and regulations 
                to individuals in their homes, pursuant to a 
                physician's order;
                    ``(ii) is accredited by an accreditation 
                organization (including organizations deemed as of 
                November 2006 by the Secretary to accredit durable 
                medical equipment suppliers) that offers home medical 
                equipment or respiratory service accreditation 
                services;
                    ``(iii) complies with the Durable Medical 
                Equipment, Prosthetics, Orthotics and Supplies Quality 
                Standards adopted by the Secretary in October 2008; and
                    ``(iv) complies with the Durable Medical Equipment, 
                Prosthetics, Orthotics and Supplies Supplier Standards 
                as set forth at section 424.57(c) of title 42, Code of 
                Federal Regulations).
            ``(B) A qualified home oxygen therapy provider may 
        determine which oxygen delivery system meets the requirements 
        of the prescribing physician's order and is appropriate for an 
        individual based upon the physician's classification of the 
        individual in a patient category.
            ``(C) Nothing in this subsection shall be construed to 
        establish a Federal requirement that a qualified home oxygen 
        therapy provider employ or otherwise retain a licensed 
        respiratory therapist to furnish services for which State law 
        does not require them to be furnished by such a licensed 
        respiratory therapist.
            ``(D) Nothing in this title shall be construed as 
        authorizing the Secretary to require an entity that is a 
        qualified home oxygen therapy provider--
                    ``(i) to obtain more than one National Provider 
                Identifier for each location in which the provider 
                operates, notwithstanding that the provider also 
                furnishes durable medical equipment under this title;
                    ``(ii) to obtain a surety bond if the entity has 
                already posted a surety bond for purposes of meeting 
                such a bond requirement as a supplier of durable 
                medical equipment or other lines of business; or
                    ``(iii) to accept assignment on claims for home 
                oxygen therapy services or to be a participating 
                supplier with respect to such services.
    ``(3) Retesting Process.--
            ``(A) In general.--The Secretary shall establish a re-
        testing process that requires qualified home oxygen therapy 
        providers to facilitate re-testing, in accordance with current 
        standards of practice and regulations of the Secretary, of 
        individuals furnished home oxygen therapy services between 60 
        and 120 days of the date on which the services were initiated 
        in the case of individuals who had a diagnosis for whom home 
        oxygen therapy was prescribed for the first time.
            ``(B) Exemption.--Such re-testing process shall not apply 
        to individuals whose diagnosis was for chronic respiratory 
        disease, including for chronic conditions that typically 
        require oxygen therapy for an extended period of time, such as 
        chronic obstructive pulmonary disease, emphysema, obstructive 
        chronic bronchitis, bronchiectasis, congestive heart failure, 
        pulmonary fibrosis, obstructive sleep apnea, and Alpha-1 
        Antitrypsin Deficiency (A1AD).''.
    (b) Payment.--Section 1834 of such Act (42 U.S.C. 1395m) is amended 
by adding at the end the following new subsection:
    ``(n) Payment for Home Oxygen Therapy Services.--
            ``(1) Establishment of single bundled payment system.--
        Payment for home oxygen therapy services under this part shall 
        be based on a single bundled payment rate for home oxygen 
        therapy services (including equipment and supplies) determined 
        under this subsection. Such a rate shall--
                    ``(A) be applied separately for each patient 
                category established under paragraph (2);
                    ``(B) be paid on a per-patient-per-month basis;
                    ``(C) be initially computed under paragraph (3) in 
                a budget neutral manner based on allowed payments for 
                providing such services (including equipment and 
                supplies);
                    ``(D) be annually updated in accordance with 
                paragraph (4); and
                    ``(E) be adjusted for its patient services 
                component for geographic factors under paragraph (5).
            ``(2) Patient categories.--
                    ``(A) In general.--Under the single bundled payment 
                system, individuals receiving home oxygen therapy 
                services shall be classified into one of three patient 
                categories, as follows:
                            ``(i) Category 1.--A first category of 
                        individuals (in this subsection referred to as 
                        `category 1') who lack mobility or are 
                        prescribed oxygen for nocturnal use only.
                            ``(ii) Category 2.--A second category of 
                        individuals (in this subsection referred to as 
                        `category 2') who have standard portability 
                        needs for oxygen therapy.
                            ``(iii) Category 3.--A third category of 
                        individuals (in this subsection referred to as 
                        `category 3') who have high portability needs 
                        for oxygen therapy.
                    ``(B) Definitions.--In this paragraph:
                            ``(i) The term `standard portability' means 
                        the use of portable oxygen is estimated at less 
                        than or equal to 40 liter hours per week.
                            ``(ii) The term `high portability' means 
                        the use of portable oxygen is estimated at more 
                        than 40 liter hours per week.
                            ``(iii) The term `liter hours per week' 
                        means the total liters of oxygen used during a 
                        month divided by 4.3 (weeks per month) divided 
                        by liters per minute prescribed divided by 60 
                        minutes.
                    ``(C) Requirement for assessment.--
                            ``(i) In general.--Subject to clause (ii), 
                        on and after January 1, 2010, an individual may 
                        not be furnished home oxygen therapy services 
                        under this part unless a physician has assigned 
                        an individual into a patient category and 
                        indicated such assignment on a certificate of 
                        medical need that is given to the home oxygen 
                        therapy provider.
                            ``(ii) Grandfather.--In the case of an 
                        individual who is receiving home oxygen therapy 
                        as of January 1, 2010, for which payment is 
                        being made under this title, clause (i) shall 
                        not apply until January 1, 2011, and until the 
                        date a physician assigns the individual into a 
                        patient category. Before such date, the 
                        individual shall be classified based on the 
                        individual's prescription as in effect on 
                        December 31, 2009.
            ``(3) Initial payment rate.--
                    ``(A) In general.--
                            ``(i) The single bundled payment rate for 
                        2010, 2011, and 2012 shall be computed annually 
                        by the Secretary in a budget neutral manner 
                        consistent with subparagraph (D) using the 
                        distributions for each category in clause (ii). 
                        The Secretary shall not make any prospective 
                        adjustments to the payment rates under this 
                        reimbursement methodology for such years. The 
                        base year shall be the latest available 
                        calendar year adjusted data.
                            ``(ii) For 2010, 2011, and 2012, the 
                        Secretary shall establish the single bundled 
                        payment rate by assuming the following 
                        distribution of individuals among the 
                        categories:
                                    ``(I) In category 1, 30 percent.
                                    ``(II) In category 2, 50 percent.
                                    ``(III) In category 3, 20 percent.
                        The Secretary shall base the allowed payments 
                        for categories 1 and 3 upon a percentage 
                        relationship to the allowed payment for 
                        category 2. Category 3 allowed payment rate 
                        should be greater than category 2 allowed 
                        payment rate and category 2 allowed payment 
                        rate should be greater than category 1.
                    ``(B) Payments for years 2013 and 2014.--The single 
                bundled payment rates for 2013 and 2014 shall be 
                computed by the Secretary in a budget neutral manner 
                consistent with subparagraph (D) using data obtained 
                through the cost reports required under this section.
                    ``(C) Payments for years 2015 and beyond.--The 
                single bundled payment rates for 2015 and subsequent 
                years shall be computed by the Secretary using data 
                obtained through the cost reports required under this 
                section.
                    ``(D) Budget neutrality.--The Secretary shall 
                calculate the single bundled payment rates established 
                under this section for 2010, 2011, 2012, 2013, and 2014 
                such that the total spending for each year is 
                equivalent in the aggregate to the spending that would 
                have been made for home oxygen therapy during such year 
                if the amendments made by the Medicare Home Oxygen 
                Therapy Services Act of 2009 had not been enacted.
            ``(4) Annual update by cpi-u.--The payment rates 
        established under this subsection shall be adjusted for each 
        year (beginning with 2011) in a prospective manner by the 
        Secretary and be published by October 1 of the previous year 
        based on the percentage increase in the consumer price index 
        for all urban consumers (all items; U.S. city average) 
        applicable to the year involved.
            ``(5) Application of geographic adjustment.--The payment 
        rates established under this subsection shall be adjusted, in a 
        budget neutral manner, to take into account differences among 
        areas in labor and transportation costs.
            ``(6) Including patient category and related information on 
        certificate of medical need.--The Secretary shall modify the 
        certificate of medical need used under this part for home 
        oxygen therapy services so that an individual's physician would 
        indicate on the form the appropriate patient category for the 
        individual. Any change in an individual's category would be 
        made by the physician submitting an updated certificate of 
        medical need form indicating the change in the individual's 
        category.
            ``(7) Responsibilities of qualified home oxygen therapy 
        providers and physicians.--
                    ``(A) Providers.--A qualified home oxygen therapy 
                provider is responsible for monitoring and periodically 
                re-evaluating, using the Oxygen Patient Evaluation 
                Form, each individual to whom the provider is 
                furnishing home oxygen therapy services under this part 
                and notifying the prescribing physician when the 
                results of such an re-evaluation indicate that a re-
                assignment in a category under this subsection may be 
                warranted due to a change in the individual's clinical 
                condition or ambulatory status.
                    ``(B) Physicians.--Such an individual's physician 
                is responsible for making any change in such an 
                individual's category placement and for documenting 
                such change in the individual's medical record and 
                providing an updated certificate of medical need to the 
                home oxygen therapy provider.
            ``(8) Cost reports.--
                    ``(A) In general.--The Secretary in consultation 
                with the Home Oxygen Therapy Advisory Committee 
                established under paragraph (9) shall develop an annual 
                cost report for qualified home oxygen therapy providers 
                with respect to the costs incurred for equipment, 
                supplies, and services furnished to individuals. 
                Qualified home oxygen therapy providers shall submit 
                such report annually to the Secretary and the Secretary 
                shall not require the submission of more than one such 
                cost report for such a provider for each year.
                    ``(B) Streamlined report for small suppliers.--
                Qualified home oxygen therapy providers with not more 
                than $1,000,000 in revenue from the provision of home 
                oxygen therapy services under this part shall be 
                permitted to submit a shorter or streamlined report 
                under this paragraph.
                    ``(C) Implementation.--The Secretary shall not 
                require the submission of a cost report under this 
                paragraph earlier than January 1, 2012.
            ``(9) Home oxygen therapy advisory committee.--
                    ``(A) In general.--The Secretary shall establish 
                and convene an independent, multidisciplinary, 
                nonpartisan Home Oxygen Therapy Advisory Committee (in 
                this paragraph referred to as the `Advisory Committee') 
                (pursuant to section 222 of the Public Health Service 
                Act (42 U.S.C. 217a)) not later than 6 months after the 
                date of the enactment of this subsection.
                    ``(B) Composition.--The Advisory Committee shall 
                consist of such members as the Secretary may appoint 
                and who shall serve for such term as the Secretary may 
                specify. In appointing members, the Secretary shall 
                consult with the home oxygen therapy community. The 
                Advisory Committee shall be comprised of members of the 
                home oxygen therapy community, including patients, 
                nurses, respiratory therapists, physicians, qualified 
                home oxygen therapy providers representing urban and 
                rural markets and the diverse provider community, 
                public health organizations, patient advocates, and 
                manufacturers. In this subparagraph, the term `public 
                health organization' means a private entity and does 
                not include a public health agency.
                    ``(C) Functions.--The Committee shall provide a 
                forum for expert discussion and deliberation and the 
                formulation of advice and recommendations to the 
                Secretary regarding coverage and payment for home 
                oxygen therapy services under this part, including--
                            ``(i) selecting, modifying, and updating 
                        quality measures;
                            ``(ii) developing the objective, evidence-
                        based clinical criteria used to define each of 
                        the patient categories;
                            ``(iii) designing a consensus-based oxygen 
                        patient evaluation form;
                            ``(iv) refining the services included in 
                        home oxygen therapy services;
                            ``(v) establishing a quality improvement 
                        program;
                            ``(vi) evaluating a comparative 
                        effectiveness program that also would also 
                        include chronic care management; and
                            ``(vii) strengthening anti-fraud, abuse, 
                        and waste provisions by--
                                    ``(I) mandating site inspections 
                                for all new home oxygen therapy 
                                providers;
                                    ``(II) requiring site inspections 
                                for all home oxygen therapy provider 
                                renewals;
                                    ``(III) improving validation of new 
                                home oxygen therapy providers by 
                                improving the application process for 
                                obtaining a National Provider 
                                Identifier;
                                    ``(IV) requiring two additional 
                                random, unannounced site visits for all 
                                new home oxygen therapy providers 
                                during the first year of operation;
                                    ``(V) requiring a 6-month trial 
                                period for new home oxygen therapy 
                                providers during which time the 
                                provider would receive a preliminary 
                                National Provider Identifier;
                                    ``(VI) establishing an anti-fraud 
                                office within the Centers for Medicare 
                                & Medicaid Services to coordinate 
                                detection and deterrence of fraud and 
                                improper payments across the Medicare 
                                and Medicaid programs by accepting and 
                                responding to reports of alleged fraud 
                                and abuse from physicians and 
                                providers;
                                    ``(VII) considering the proper 
                                Federal funding levels needed for 
                                improving fraud prevention;
                                    ``(VIII) requiring post-payment 
                                audit reviews for all new home oxygen 
                                therapy providers relying upon 6 
                                months' worth of claims submissions;
                                    ``(IX) requiring the Centers for 
                                Medicare & Medicaid Services to conduct 
                                real-time claims analysis analyzing 
                                home oxygen therapy provider claims to 
                                identify aberrant billing patterns more 
                                quickly;
                                    ``(X) ensuring that all providers 
                                are qualified to offer the services for 
                                which they submit claims by mandating 
                                cross-checking Medicare and other 
                                relevant databases to ensure that home 
                                oxygen therapy providers are qualified 
                                and accredited for providing home 
                                oxygen therapy services;
                                    ``(XI) establishing written due 
                                process procedures for home oxygen 
                                therapy providers applying for a 
                                National Provider Identifier, including 
                                establishing an administrative appeals 
                                process and clear timelines;
                                    ``(XII) increasing penalties and 
                                fines and fraud for activities such as 
                                buying or stealing beneficiaries' 
                                Medicare numbers or physician's 
                                provider numbers; and
                                    ``(XIII) establishing more rigorous 
                                quality standards.
                    ``(D) Report.--The Committee shall provide the 
                Secretary with periodic reports that summarize the 
                Committee's activities and its recommendations for such 
                legislation and administrative action as it considers 
                appropriate.
                    ``(E) Authorization of appropriations.--There are 
                authorized to be appropriated such sums as may be 
                necessary to carry out the purposes of this paragraph.
            ``(10) Claims processing.--The Secretary shall provide for 
        processing of claims for home oxygen therapy services from home 
        oxygen therapy providers to be conducted through the 
        administrative contractors under this title for durable medical 
        equipment.
            ``(11) Beneficiary rights.--The Secretary shall establish 
        through regulation the following protections for individuals 
        receiving home oxygen therapy services under this part:
                    ``(A) To choose the individual's local provider of 
                such services from among qualified home oxygen therapy 
                service providers and to change such provider.
                    ``(B) To receive communications from the home 
                oxygen therapy provider in a clear and understandable 
                manner.
                    ``(C) To privacy and confidentiality in all aspects 
                of treatment and their personal health information 
                consistent with Federal and State laws.
                    ``(D) To be informed by the home oxygen therapy 
                provider about and participate, if desired, in all 
                aspects of the oxygen therapy services being furnished 
                to the individual by the provider, and be informed by 
                such provider of the right to refuse treatment, to 
                discontinue treatment, and to refuse to participate in 
                experimental research.
                    ``(E) To be informed by the home oxygen therapy 
                provider of policies and expectations of the provider 
                regarding patient conduct and responsibilities.
                    ``(F) To be informed by the home oxygen therapy 
                provider about the individual's right to execute 
                advance directives.
                    ``(G) To be informed by the home oxygen therapy 
                provider about treatment modalities and categories of 
                equipment relating to home oxygen therapy services for 
                use by the individual and offered by the provider.
                    ``(H) To be informed of the home oxygen therapy 
                provider's policies regarding 24-hour on-call coverage.
                    ``(I) To be informed by the home oxygen therapy 
                provider of the individual's financial responsibilities 
                with regard to such services.
                    ``(J) To be provided with the clinically 
                appropriate oxygen equipment and services as agreed 
                upon by the individual (or the individual's 
                representative), the provider, and the prescribing 
                physician.
                    ``(K) To be informed by the home oxygen therapy 
                provider of any potential changes to the individual's 
                equipment or services regarding home oxygen therapy 
                services and the right to consult with individual's 
                physician regarding such changes to ensure they are 
                appropriate and necessary and the exceptions as 
                specified by the Secretary when a home oxygen therapy 
                provider may change an individual's oxygen equipment.
                    ``(L) To be informed by the home oxygen therapy 
                provider of the provider's internal and external 
                grievance processes (as well as how to contact Medicare 
                through the hotline or Beneficiary Ombudsman), 
                including the individual's right to file internal or 
                external grievances or both without retaliation or 
                denial of services and the right to file them 
                personally or through a representative of the 
                individual's choosing.
                    ``(M) To receive from the home oxygen therapy 
                provider written notice 30 days in advance of an 
                involuntary termination, after the home oxygen therapy 
                provider follows established involuntary discharge 
                procedures; however, in the case of immediate threats 
                to the health and safety of others, the Secretary may 
                permit the home oxygen therapy provider to use an 
                abbreviated termination procedure.
                    ``(N) To be assisted by the home oxygen therapy 
                provider in obtaining the equipment and supplies for 
                home oxygen therapy services prescribed by individual's 
                treating physician when the individual is traveling.
                    ``(O) To receive from the home oxygen therapy 
                provider oxygen supplies, refills, and emergency back-
                up equipment and refills as appropriate.''.

SEC. 4. EFFECTIVE DATE.

    The amendments made by this Act shall apply to services and 
supplies furnished on or after January 1, 2010.
                                 <all>