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:

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.