[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 1110 Introduced in Senate (IS)]

111th CONGRESS
  1st Session
                                S. 1110

 To amend title XVIII of the Social Security Act to create a sensible 
  infrastructure for delivery system reform by renaming the Medicare 
Payment Advisory Commission, making the Commission an executive branch 
  agency, and providing the Commission new resources and authority to 
                   implement Medicare payment policy.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 20, 2009

Mr. Reid (for Mr. Rockefeller) introduced the following bill; which was 
          read twice and referred to the Committee on Finance

_______________________________________________________________________

                                 A BILL


 
 To amend title XVIII of the Social Security Act to create a sensible 
  infrastructure for delivery system reform by renaming the Medicare 
Payment Advisory Commission, making the Commission an executive branch 
  agency, and providing the Commission new resources and authority to 
                   implement Medicare payment policy.

    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 Payment Advisory Commission 
(MedPAC) Reform Act of 2009''.

SEC. 2. RENAMING AND REFORMING THE MEDICARE PAYMENT ADVISORY 
              COMMISSION.

    (a) Amendment to Title.--
            (1) In general.--Section 1805 of the Social Security Act 
        (42 U.S.C. 1395b-6) is amended--
                    (A) in the heading, by striking ``medicare payment 
                advisory commission'' and inserting ``medicare payment 
                and access commission''; and
                    (B) in subsection (a), by striking ``Medicare 
                Payment Advisory Commission'' and inserting ``Medicare 
                Payment and Access Commission (or `MedPAC')''.
            (2) References.--Any reference to the Medicare Payment 
        Advisory Commission shall be deemed a reference to the Medicare 
        Payment and Access Commission.
    (b) Establishment as Executive Agency.--Section 1805 of the Social 
Security Act (42 U.S.C. 1395b-6) is amended--
            (1) in the heading, by striking ``advisory'';
            (2) in subsection (a)--
                    (A) by striking ``Advisory''; and
                    (B) by striking ``agency of Congress'' and 
                inserting ``independent establishment (as defined in 
                section 104 of title 5, United States Code)'';
            (3) in subsection (c)--
                    (A) in paragraph (1)--
                            (i) by striking ``Appointment.--The 
                        Commission'' and inserting ``Appointment.--
                    ``(A) In general.--The Commission'';
                            (ii) in subparagraph (A), as inserted by 
                        clause (i)--
                                    (I) by striking ``17'' and 
                                inserting ``11'';
                                    (II) by inserting ``the Secretary 
                                and the Administrator of the Centers 
                                for Medicare & Medicaid Services, who 
                                shall each serve as non-voting members 
                                of the Commission, and'' after 
                                ``composed of''; and
                                    (III) by striking ``Comptroller 
                                General'' and inserting ``President, by 
                                and with the advice and consent of the 
                                Senate''; and
                            (iii) by adding at the end the following 
                        new subparagraphs:
                    ``(B) Limitation on number of terms served.--An 
                individual may not be appointed as a member of the 
                Commission for more than 2 consecutive terms.
                    ``(C) Members currently appointed.--
                            ``(i) In general.--Any individual serving 
                        as a member of the Commission as of the date of 
                        enactment of the Medicare Payment Advisory 
                        Commission (MedPAC) Reform Act of 2009 may 
                        continue to serve as a member until the earlier 
                        of--
                                    ``(I) the remainder of the term for 
                                which the member was appointed; or
                                    ``(II) April 30, 2010.
                            ``(ii) Clarification regarding vacancies.--
                        Any vacancy in the Commission on or after such 
                        date of enactment shall be filled as provided 
                        in accordance with subparagraph (A).''; and
                    (B) in paragraph (2), by striking subparagraph (D) 
                and inserting the following new subparagraph:
                    ``(D) Additional qualifications.--In addition to 
                the qualifications described in the succeeding 
                provisions of this paragraph, the President shall 
                consider the political balance of the membership of the 
                Commission and the needs of individuals entitled to (or 
                enrolled for) benefits under part A or enrolled under 
                part B who are entitled to medical assistance under a 
                State plan under title XIX.''.
                    (C) in paragraph (3)--
                            (i) by amending subparagraph (A) to read as 
                        follows:
                    ``(A) In general.--The terms of members of the 
                Commission shall be for 6 years except that, of the 
                members first appointed--
                            ``(i) four shall be appointed for terms of 
                        5 years;
                            ``(ii) four shall be appointed for terms of 
                        3 years; and
                            ``(iii) three shall be appointed for terms 
                        of 1 year.''; and
                            (ii) in subparagraph (B), in the third 
                        sentence, by striking ``A vacancy'' and 
                        inserting ``Except as provided in paragraph 
                        (1)(C), a vacancy'';
                    (D) by amending paragraph (4) to read as follows:
            ``(4) Compensation.--Membership in the Commission shall be 
        a full-time position. A member of the Commission shall be 
        entitled to compensation at the rate payable for level IV of 
        the Executive Schedule under section 5316 of title 5, United 
        States Code.''.
                    (E) by amending paragraph (5) to read as follows:
            ``(5) Chairman; vice chairman.--The President shall 
        designate a member of the Commission, at the time of 
        appointment of the member by and with the advice and consent of 
        the Senate, as Chairman and a member of the Commission, at the 
        time of appointment of the member by and with the advice and 
        consent of the Senate, as Vice Chairman, except that in the 
        case where the Chairman or the Vice Chairman is not able to be 
        present (including in the case of vacancy), a majority of the 
        Commission may designate another member for the period of such 
        absence.'';
            (4) in subsection (d), in the matter preceding paragraph 
        (1), by striking ``Subject to such review as the Comptroller 
        General deems necessary to assure the efficient administration 
        of the Commission, the Commission'' and inserting ``The 
        Commission'';
            (5) by amending subsection (f) to read as follows:
    ``(f) Authorization of Appropriations.--There are authorized to be 
appropriated such sums as may be necessary to carry out the provisions 
of this section. Sixty percent of such appropriations shall be payable 
from the Federal Hospital Insurance Trust Fund, and 40 percent of such 
appropriation shall be payable from the Federal Supplementary Medical 
Insurance Trust Fund.''; and
            (6) by adding at the end the following new subsection:
    ``(g) References.--Any reference to the Medicare Payment Advisory 
Commission or MedPAC shall be deemed a reference to the Medicare 
Payment and Access Commission.''.
    (c) Authority To Determine Payment Rates and Routine Evaluation of 
Payment Rates Under the Medicare Program.--
            (1) In general.--Section 1805(b) of the Social Security Act 
        (42 U.S.C. 1395b-6(b)) is amended--
                    (A) in paragraph (1)(B), by inserting ``and 
                determine payment rates for items and services 
                furnished under this title in accordance with paragraph 
                (9)'' before the semicolon at the end; and
                    (B) by adding at the end the following new 
                paragraphs:
            ``(9) Authority to determine payment rates under this 
        title.--
                    ``(A) Determination of payment rates.--
                            ``(i) In general.--Notwithstanding any 
                        other provision of law, the Commission shall 
                        determine payment rates for items and services 
                        furnished under this title. In determining such 
                        payment rates, the Commission shall do so in a 
                        manner that is consistent with the provisions 
                        of sections 1801 and 1802.
                            ``(ii) Timeline for determinations with 
                        respect to payment policies for physicians and 
                        hospitals.--The Commission shall make a 
                        determination under this subparagraph with 
                        respect to payment policies--
                                    ``(I) for physicians (as defined in 
                                section 1861(r)(1)), not later than 
                                December 1 of each year (beginning with 
                                2012); and
                                    ``(II) for hospitals, not later 
                                than March 1 of each year (beginning 
                                with 2013).
                    ``(B) Implementation of payment rates.--
                            ``(i) Authority of secretary.--
                        Notwithstanding any other provision of law, the 
                        Secretary shall promulgate regulations to 
                        implement any payment rates determined by the 
                        Commission under subparagraph (A).
                            ``(ii) Payment rates and regulations 
                        currently in effect.--Any payment rate for 
                        items and services furnished under this title 
                        as of the date of enactment of the Medicare 
                        Payment Advisory Commission (MedPAC) Reform Act 
                        of 2009 or regulation promulgated by the 
                        Secretary relating to such payments prior to 
                        such date of enactment shall remain in effect 
                        until the Secretary promulgates regulations 
                        under clause (ii) to implement a payment rate 
                        determined by the Commission with respect to 
                        the item or service.
                    ``(C) Limitation on judicial review.--Any 
                determination of the Commission relating to payment 
                rates for items and services furnished under this title 
                shall be a final agency action of the Commission and 
                shall not be subject to judicial review.
                    ``(D) Annual report.--Not later than March 15 of 
                each year (beginning with 2012), the Commission shall 
                submit to Congress a report on any payment rates 
                determined under subparagraph (A) during the preceding 
                year, including the performance of the Secretary in 
                implementing such payment rates by promulgating 
                regulations under subparagraph (B).
            ``(10) Routine evaluation of payment rates.--The Commission 
        shall review the payment rate for each item and service 
        furnished under this title not less frequently than every 5 
        years in order to determine whether the Commission should make 
        a determination under paragraph (9) to update such payment 
        rate.''.
            (2) GAO study and annual report on determination and 
        implementation of payment rates.--
                    (A) Study.--The Comptroller General of the United 
                States shall conduct a study on changes to payment 
                policies under the Medicare program under title XVIII 
                of the Social Security Act as a result of the 
                amendments made by this subsection, including an 
                analysis of--
                            (i) any determinations made by the Medicare 
                        Payment and Access Commission under 
                        subparagraph (A) of section 1805(b)(9) of such 
                        Act, as added by paragraph (1), during the 
                        preceding year;
                            (ii) any regulations promulgated by the 
                        Secretary of Health and Human Services under 
                        subparagraph (B) of such section during the 
                        preceding year;
                            (iii) the process for--
                                    (I) making such determinations 
                                (including the evidence to support any 
                                such determination);
                                    (II) promulgating such regulations 
                                (including the capacity of the 
                                Secretary of Health and Human Services 
                                to promulgate such regulations); and
                            (iv) the ability of the Centers for 
                        Medicare & Medicaid Services to fulfill its 
                        responsibilities in carrying out such 
                        regulations.
                    (B) Report.--Not later than December 31 of each 
                year (beginning with 2012), the Comptroller General 
                shall submit to Congress a report containing the 
                results of the study conducted under subparagraph (A), 
                together with recommendations for such legislation and 
                administrative action as the Secretary determines 
                appropriate.
    (d) Congressional Action.--Section 1805 of the Social Security Act 
(42 U.S.C. 1395b-6), as amended by subsection (b), is amended--
            (1) by redesignating subsections (f) and (g), respectively, 
        as subsections (g) and (h); and
            (2) by inserting after subsection (e) the following new 
        subsection:
    ``(f) Congressional Action.--
            ``(1) In general.--Notwithstanding any other provision of 
        law, it shall only be in order in the Senate or the House of 
        Representatives to consider any measure that would overrule a 
        determination of the Commission with respect to payments for 
        items and services furnished under this title if \3/5\ of the 
        Members, duly chosen and sworn, of the Senate or the House of 
        Representatives agree to such consideration.
            ``(2) Rules of the senate and house of representatives.--
        This subsection is enacted by Congress--
                    ``(A) as an exercise of the rulemaking power of the 
                Senate and House of Representatives, respectively, and 
                is deemed to be part of the rules of each House, 
                respectively, but applicable only with respect to the 
                procedure to be followed in that House in the case of a 
                measure described in paragraph (1), and it supersedes 
                other rules only to the extent that it is inconsistent 
                with such rules; and
                    ``(B) with full recognition of the constitutional 
                right of either House to change the rules (so far as 
                they relate to the procedure of that House) at any 
                time, in the same manner, and to the same extent as in 
                the case of any other rule of that House.''.
    (e) Research, Information Access, and Demonstration Projects.--
Section 1805(e) of the Social Security Act (42 U.S.C. 1395b-6(e)) is 
amended by adding at the end the following new paragraphs:
            ``(5) Authority to inform research priorities for data 
        collection.--The Commission may advise the Secretary (through 
        the Director of the Agency for Healthcare Research and Quality 
        and the Director of the National Institutes of Health) on 
        priorities for health services research, particularly as such 
        priorities pertain to necessary changes and issues regarding 
        payment reforms under this title.
            ``(6) Expanded authority to access federal data and 
        reports.--In addition to data obtained under paragraph (1), the 
        Commission shall have priority access to all raw data and 
        research conducted or funded by the Federal government, 
        including data and research produced by the Centers for 
        Medicare & Medicaid Services, the National Institutes of 
        Health, and the Agency for Healthcare Research and Quality.
            ``(7) Electronic access.--The National Director for Health 
        Information Technology, in coordination with the Secretary, the 
        Administrator of the Centers for Medicare & Medicaid Services, 
        and the Commission, shall establish a direct electronic link 
        for raw data, including claims data under this title, to be 
        accessed by the Commission for the purposes of evaluating and 
        determining recommendations under this title, in accordance 
        with applicable privacy laws and data use agreements.
            ``(8) Access to biannual reports.--Not less frequently than 
        on a biannual basis, the National Institutes of Health and the 
        Agency for Healthcare Research and Quality shall submit to the 
        Commission a report containing information on any research 
        conducted by the National Institutes of Health and the Agency 
        for Healthcare Research and Quality, respectively, which has 
        relevance for the determinations and recommendations being 
        considered by the Commission. Such information shall be 
        provided to the Commission in electronic form.
            ``(9) Revisions to process for conduct of demonstration 
        projects relating to payments under this title.--Effective 
        beginning January 1, 2011, the Commission shall have sole 
        authority to design and evaluate demonstration projects 
        relating to payments under this title which are authorized by 
        section 402 of the Social Security Amendments of 1967 or under 
        a waiver under section 1115. The Secretary shall maintain all 
        responsibility for implementing such demonstration projects, 
        including for implementing the process through which providers 
        are reimbursed for items and services furnished under the 
        demonstration projects. Nothing in this paragraph shall affect 
        the authority of the Secretary with respect to demonstration 
        projects under this title not relating to such payments.''.
    (f) Additional Resources To Carry Out Duties.--
            (1) In general.--Section 1805(d) of the Social Security Act 
        (42 U.S.C. 1395b-6(d)) is amended--
                    (A) in paragraph (1), by inserting ``(including an 
                attorney)'' after ``such other personnel''; and
                    (B) in paragraph (5), by striking ``and'' at the 
                end;
                    (C) in paragraph (6), by striking the period at the 
                end and inserting ``; and''; and
                    (D) by adding at the end the following new 
                paragraph:
            ``(7) establish a public affairs office.''.
            (2) Office of the ombudsman.--Section 1805(e) of the Social 
        Security Act (42 U.S.C. 1395b-6(e)), as amended by subsection 
        (e), is amended by adding at the end the following new 
        paragraph:
            ``(10) Office of the ombudsman.--
                    ``(A) In general.--The Commission shall establish 
                an office of the ombudsman to handle complaints 
                regarding the implementation of regulations under 
                subsection (a)(9)(B).
                    ``(B) Duties.--The office of the ombudsman shall--
                            ``(i) act as a liaison between the 
                        Commission and any entity or individual 
                        affected by the implementation of such a 
                        regulation; and
                            ``(ii) ensure that the Commission has 
                        established safeguards--
                                    ``(I) to encourage such entities 
                                and individuals to submit complaints to 
                                the office of the ombudsman; and
                                    ``(II) to protect the 
                                confidentiality of any entity or 
                                individual who submits such a 
                                complaint.''.
    (g) Use of Funding.--Section 1805(g) of the Social Security Act (42 
U.S.C. 1395b-6(g)), as amended by subsection (b) and redesignated by 
subsection (d), is amended by adding at the end the following new 
sentence: ``Out of amounts appropriated under the preceding sentence, 
the Commission may use not more than $500,000,000 each fiscal year to 
test new methods of reimbursement under this title.''.
    (h) MACPAC Technical Amendments.--Section 1900(b) of the Social 
Security Act (42 U.S.C. 1396) is amended--
            (1) in paragraph (1)(D), by striking ``June 1'' and 
        inserting ``June 15''; and
            (2) by adding at the end the following:
            ``(10) Consultation with medpac.--MACPAC shall regularly 
        consult with the Medicare Payment and Access Commission (in 
        this paragraph referred to as `MedPAC') established under 
        section 1805 in carrying out its duties under this section.''.
    (i) Lobbying Cooling-Off Period for Members of the Medicare Payment 
Advisory Commission.--Section 207(c) of title 18, United States Code, 
is amended by inserting at the end the following:
            ``(3) Members of the medicare payment advisory 
        commission.--
                    ``(A) In general.--Paragraph (1) shall apply to a 
                member of the Medicare Payment Advisory Commission who 
                was appointed to such Commission as of the day before 
                the date of enactment of the Medicare Payment Advisory 
                Commission (MedPAC) Reform Act of 2009.
                    ``(B) Agencies and congress.--For purposes of 
                paragraph (1), the agency in which the individual 
                described in subparagraph (A) served shall be 
                considered to be the Medicare Payment and Access 
                Commission established under section 1805 of the Social 
                Security Act, the Department of Health and Human 
                Services, and the relevant committees of jurisdiction 
                of Congress.''.

SEC. 3. ESTABLISHMENT OF COUNCIL OF HEALTH AND ECONOMIC ADVISERS, 
              CONSUMER ADVISORY COUNCIL, AND FEDERAL HEALTH ADVISORY 
              COUNCIL.

    Section 1805(b) of the Social Security Act (42 U.S.C. 1395b-6(b)), 
as amended by section 2(c), is amended by adding at the end the 
following new paragraph:
            ``(11) Council of health and economic advisers, consumer 
        advisory council, and federal health advisory council.--
                    ``(A) Council of health and economic advisers.--
                            ``(i) In general.--The Commission shall 
                        establish a council of health and economic 
                        advisers to advise the Commission on its 
                        development, analyses, and implementation of 
                        payment policies under this title.
                            ``(ii) Membership.--
                                    ``(I) In general.--The council of 
                                health and economic advisers shall be 
                                composed of acknowledged experts in 
                                health care and economics selected by 
                                the Commission.
                                    ``(II) Initial inclusion of former 
                                members of medicare payment advisory 
                                commission.--The members initially 
                                selected for the council of health and 
                                economic advisers under subclause (I) 
                                shall include those individuals who 
                                were members of the Medicare Payment 
                                Advisory Commission as of the day 
                                before the date of enactment of the 
                                Medicare Payment Advisory Commission 
                                (MedPAC) Reform Act of 2009.
                    ``(B) Consumer advisory council.--
                            ``(i) In general.--There is established a 
                        consumer advisory council to advise the 
                        Commission on the impact of payment policies 
                        under this title on consumers.
                            ``(ii) Membership.--
                                    ``(I) Number and appointment.--The 
                                consumer advisory council shall be 
                                composed of 10 consumer representatives 
                                appointed by the Comptroller General of 
                                the United States, 1 from among each of 
                                the 10 regions established by the 
                                Secretary as of the date of enactment 
                                of the Medicare Payment Advisory 
                                Commission (MedPAC) Reform Act of 2009.
                                    ``(II) Qualifications.--The 
                                membership of the council shall 
                                represent the interests of consumers 
                                and particular communities.
                            ``(iii) Duties.--The consumer advisory 
                        council shall, subject to the call of the 
                        Commission, meet not less frequently than 2 
                        times each year in the District of Columbia.
                            ``(iv) Open meetings.--Meetings of the 
                        consumer advisory council shall be open to the 
                        public.
                            ``(v) Election of officers.--Members of the 
                        consumer advisory council shall elect their own 
                        officers.
                    ``(C) Federal health advisory council.--
                            ``(i) In general.--There is established a 
                        Federal health advisory council to consult with 
                        and provide advice to the Commission on all 
                        matters within the jurisdiction of the 
                        Commission.
                            ``(ii) Membership.--The Federal health 
                        advisory council shall be composed of 10 
                        representatives from the health care industry 
                        appointed by the Comptroller General of the 
                        United States, 1 from among each of the 10 
                        regions established by the Secretary as of the 
                        date of enactment of the Medicare Payment 
                        Advisory Commission (MedPAC) Reform Act of 
                        2009.
                            ``(iii) Terms.--
                                    ``(I) In general.--The terms of 
                                members of the Federal health advisory 
                                council shall be for 1 year.
                                    ``(II) Limitation on number of 
                                terms served.--An individual may not be 
                                appointed as a member of the Federal 
                                health advisory council for more than 3 
                                terms.
                            ``(iv) Duties.--The Federal health advisory 
                        council shall, subject to the call of the 
                        Commission, meet not less frequently than 2 
                        times each year in the District of Columbia.
                            ``(v) Open meetings.--Meetings of the 
                        Federal health advisory council shall be open 
                        to the public.
                            ``(vi) Election of officers.--Members of 
                        the Federal health advisory council shall elect 
                        their own officers.
                    ``(D) Limitation on funding.--Out of amounts 
                appropriated under subsection (g), the Commission may 
                use not more than $300,000 each fiscal year to carry 
                out this paragraph.''.
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