[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 4390 Introduced in House (IH)]
111th CONGRESS
1st Session
H. R. 4390
To amend title XI of the Social Security Act to provide for enhanced
program and provider protections under the Medicare, Medicaid, and
Children's Health Insurance programs.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
December 16, 2009
Mr. Murphy of New York 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 XI of the Social Security Act to provide for enhanced
program and provider protections under the Medicare, Medicaid, and
Children's Health Insurance programs.
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 and Medicaid Fraud
Prevention and Control Act of 2009''.
SEC. 2. ENHANCED CMS PROGRAM PROTECTION AUTHORITY.
(a) In General.--Title XI of the Social Security Act (42 U.S.C.
1301 et seq.) is amended by inserting after section 1128F the following
new section:
``SEC. 1128G. ENHANCED PROGRAM AND PROVIDER PROTECTIONS IN THE
MEDICARE, MEDICAID, AND CHIP PROGRAMS.
``(a) Certain Authorized Screening, Enhanced Oversight Periods,
Enrollment Moratoria, and Periodic Validations.--
``(1) Authorization.--
``(A) In general.--In which the Secretary has
determined that there is a significant risk of
fraudulent activity (as determined by the Secretary
based on relevant complaints, reports, referrals by law
enforcement or other sources, data analysis, trending
information, or claims submissions by providers of
services and suppliers) with respect to a category of
provider of services or supplier of items or services,
which may be a category within a geographic area, under
title XVIII, XIX, or XXI, the Secretary may impose,
subject to subparagraph (B), with respect to a program
under title XVIII, XIX, or XXI, the Secretary impose
any of the following requirements with respect to a
provider of services or a supplier (whether such
provider or supplier is initially enrolling in the
program or is renewing such enrollment):
``(i) Screening under paragraph (2).
``(ii) Enhanced oversight periods under
paragraph (3).
``(iii) Enrollment moratoria under
paragraph (4).
``(iv) Periodic validations of
authorizations under paragraph (5).
``(B) State requirement.--In applying this
subsection for purposes of title XIX and XXI, the
Secretary may require a State to carry out the
provisions of this subsection (and subsection (b)) as a
requirement of the State plan under title XIX or the
child health plan under title XXI. Actions taken and
determinations made under this subsection and
subsection (b) shall not be subject to review by a
judicial tribunal.
``(2) Screening.--For purposes of paragraph (1), the
Secretary shall establish procedures under which screening is
conducted with respect to providers of services and suppliers
described in such paragraph. Such screening may include at
least--
``(A) licensing board checks;
``(B) screening against the list of individuals and
entities excluded from the program under title XVIII,
XIX, or XXI;
``(C) the excluded provider list system;
``(D) background checks;
``(E) unannounced pre-enrollment or other site
visits; and
``(F) heightened disclosure of affiliations.
``(3) Enhanced oversight period.--For purposes of paragraph
(1), the Secretary shall establish procedures to provide for a
period of not less than 30 days and not more than 365 days
during which providers of services and suppliers described in
such paragraph, as the Secretary determines appropriate, would
be subject to enhanced oversight, such as required or
unannounced (or required and unannounced) site visits or
inspections, prepayment review, enhanced review of claims, and
such other actions as specified by the Secretary, under the
programs under titles XVIII, XIX, and XXI. Under such
procedures, the Secretary may extend such period for more than
365 days if the Secretary determines that after the initial
period such additional period of oversight is necessary.
``(4) Enhanced oversight for claims of dme suppliers.--If
the Secretary determines under paragraph (1) that there is a
significant risk of fraudulent activity among suppliers of
durable medical equipment, in the case of a supplier of durable
medical equipment who is within a category or geographic area
under title XVIII identified pursuant to such determination,
whether at the time of initial enrollment under such title or
otherwise, the Secretary shall, notwithstanding section
1842(c)(2), withhold payment under such title with respect to
durable medical equipment furnished by such supplier during a
period specified by the Secretary.
``(5) Periodic review of physician authorizations.--For
purposes of paragraph (1), the Secretary shall establish a
program under which, in cases in which the Secretary (or an
administrative contractor) determines under a program described
in paragraph (1) that there may have been a pattern of
excessive prescribing or authorization of items or services by
a physician or other health care professional--
``(A) the Secretary (or contractor) submits to the
physician or professional on a quarterly basis a list
of the claims submitted under the program based on a
prescription or authorization by the physician or
professional; and
``(B) if the physician or professional does not
validate by the end of the 90-day period beginning on
the date of receipt of the list the legitimacy of the
previously identified claims for items and services
prescribed or authorized by the physician or
professional, claims relating to such items and
services prescribed or authorized by such physician or
professional for subsequent periods shall be denied
until such validation is made.
``(6) Moratorium on enrollment of providers and
suppliers.--For purposes of paragraph (1), the Secretary, based
upon a finding of a risk of serious ongoing fraud within a
program under title XVIII, XIX, or XXI, may impose a moratorium
on the enrollment of providers of services and suppliers within
a category of providers of services and suppliers (including a
category within a specific geographic area) under such title.
Such a moratorium may only be imposed if the Secretary makes a
determination that the moratorium would not adversely impact
access of individuals to care under such program.
``(7) Clarification.--Nothing in this subsection shall be
interpreted to preclude or limit the ability of a State to
engage in provider screening or enhanced provider oversight
activities beyond those required by the Secretary.
``(b) Probationary Period To Determine Legitimacy of New Providers
and Suppliers.--The Secretary shall establish procedures (without
regard to section 1874A(h)) under which at the time a provider or
supplier is first approved for participation in the program under title
XVIII, XIX, or XXI, there shall be a probationary period of heightened
review (specified by the Secretary, but in no case longer than 1 year)
under which--
``(1) the Secretary (or an administrative contractor) shall
review a random or other appropriate sample of claims to
determine the legitimacy of the operations of the provider or
supplier;
``(2) the Secretary (or such contractor) shall validate the
legitimacy of physician prescriptions or other authorizations
for the items and services furnished by such provider or
supplier; and
``(3) if the Secretary, on the basis of such a review of
such claims or such validation, makes a preliminary finding
that a significant or disproportionate number of such claims
are not legitimate (as determined by the Secretary), the
Secretary may suspend or terminate the participation of the
provider or supplier with notice to the provider or supplier.
The provisions of subsections (c) through (g) of section 1128 shall
apply to a suspension or termination under paragraph (3) in the same
manner as such provisions apply to an exclusion under subsection (a) or
(b) of such section. In the case of a physician or other professional
that fails to cooperate with the Secretary (or a contractor) in the
validation of prescriptions or authorizations described in paragraph
(2), the Secretary may impose a civil monetary penalty of not to exceed
$10,000 with respect to the validation of items and services furnished
by any particular provider or supplier. The provisions of section 1128A
(other than subsections (a) and (b)) shall apply to a civil money
penalty under the previous sentence in the same manner as such
provisions apply to a penalty or proceeding under section 1128A(a).''.
(b) Revision of Prompt Pay Provisions.--Sections 1816(c)(2) and
1842(c)(2) of such Act (42 U.S.C. 1395h(c)(2), 1395u(c)(2)) are each
amended--
(1) in subparagraph (A), by striking ``Each contract'' and
inserting ``Subject to subparagraph (C), each contract''; and
(2) by adding at the end the following new subparagraph:
``(C) Subparagraph (A) shall not apply to claims of providers or
suppliers in cases in which the Secretary identifies a pattern or
practice of claim submission that appear to be suspicious or otherwise
indicative of a higher likelihood of being fraudulent.''.
(c) Conforming Amendments.--
(1) Medicaid.--Section 1902(a) of the Social Security Act
(42 U.S.C. 1396a(a)) is amended--
(A) in paragraph (23), by inserting before the
semicolon at the end the following: ``or by a person to
whom or entity to which a moratorium under section
1128G(a)(4) is applied during the period of such
moratorium'';
(B) in paragraph (72); by striking at the end
``and'';
(C) in paragraph (73), by striking the period at
the end and inserting ``; and''; and
(D) by adding after paragraph (73) the following
new paragraph:
``(74) provide that the State will enforce any
determination made by the Secretary under subsection (a)
(relating to a significant risk of fraudulent activity with
respect to a category of provider or supplier described in such
subsection through use of the appropriate procedures described
in such subsection) or subsection (b) section 1128G and that
the State will carry out any activities as required by the
Secretary for purposes of such subsection (a).''.
(2) CHIP.--Section 2102 of such Act (42 U.S.C. 1397bb) is
amended by adding at the end the following new subsection:
``(d) Program Integrity.--A State child health plan shall include a
description of the procedures to be used by the State--
``(1) to enforce any determination made by the Secretary
under subsection (a) (relating to a significant risk of
fraudulent activity with respect to a category of provider or
supplier described in such subsection through use of the
appropriate procedures described in such subsection) or
subsection (b) section 1128G; and
``(2) to carry out any activities as required by the
Secretary for purposes of such subsection.''.
(3) Medicare.--Section 1866(j) of such Act (42 U.S.C.
1395cc(j)) is amended by adding at the end the following new
paragraph:
``(3) Program integrity.--The provisions of subsections (a)
and (b) of section 1128G apply to enrollments and renewals of
enrollments of providers of services and suppliers under this
title.''.
(d) Consultation With OIG.--In implementing the amendments made by
this section and determining under paragraph (1) of section 1128G(a) of
the Social Security Act, as inserted by subsection (a), that a
provider, supplier, or type of service, for an area, is a significant
risk of fraudulent activity, the Secretary of Health and Human Services
shall consult with the Inspector General of the Department of Health
and Human Services in order to identify classes of providers and
suppliers or types of items and services, or such a type of provider,
supplier, or service for a specific geographic area, as being
particularly subject to fraud or abuse under Medicare, Medicaid, or the
State children's health insurance program.
(e) Additional Funding.--There are authorized to be appropriated
such sums as may be appropriate to carry out this section (and the
amendments made by this section). Such sums shall be in addition to any
amounts that may be available from the Health Care Fraud and Abuse
Control Account under section 1817(k) of the Social Security Act (42
U.S.C. 1395i(k)).
(f) Effective Date; Expedited Implementation.--
(1) Effective date.--The amendments made by this section
shall take effect upon the date of the enactment of this Act
and section 1128G(b) of the Social Security Act shall apply to
providers and suppliers that are first approved for
participation on and after the date that is 6 months after the
date of the enactment of this Act.
(2) Expedited implementation.--The Secretary of Health and
Human Services shall promulgate regulations not later than 6
months after the date of the enactment of this Act to carry out
this section, which regulations shall be effective and final
immediately on an interim basis as of the date of publication
of the interim final regulation. With respect to such an
interim final regulation, the Secretary shall provide for a
period of public comments on such regulation after the date of
publication. The Secretary may change or revise such regulation
after completion of the period of public comment.
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