[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 2409 Introduced in Senate (IS)]

<DOC>






114th CONGRESS
  1st Session
                                S. 2409

  To amend titles XVIII and XIX of the Social Security Act to improve 
   payments for hospital outpatient department services and complex 
  rehabilitation technology and to improve program integrity, and for 
                            other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           December 16, 2015

   Mr. Wyden introduced the following bill; which was read twice and 
                  referred to the Committee on Finance

_______________________________________________________________________

                                 A BILL


 
  To amend titles XVIII and XIX of the Social Security Act to improve 
   payments for hospital outpatient department services and complex 
  rehabilitation technology and to improve program integrity, 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; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Medicare and 
Medicaid Improvements and Adjustments Act of 2015''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; table of contents.
              TITLE I--CORRECTIONS TO OUTPATIENT PROVISION

Sec. 101. Continuing Medicare payment under HOPD prospective payment 
                            system for services furnished by off-campus 
                            outpatient departments of providers under 
                            development.
Sec. 102. Maintaining cancer hospital adjustment under Medicare off-
                            campus outpatient departments of a provider 
                            payment policy.
 TITLE II--PROVISIONS PROTECTING PEOPLE WITH DISABILITIES AND CHRONIC 
                               CARE NEEDS

Sec. 201. Non-application of Medicare fee schedule adjustments for 
                            wheelchair accessories and seat and back 
                            cushions when furnished in connection with 
                            complex rehabilitative power wheelchairs.
Sec. 202. Treatment of infusion drugs furnished through durable medical 
                            equipment.
Sec. 203. Transitional payment rules for certain radiation therapy 
                            services under the Medicare physician fee 
                            schedule.
Sec. 204. Fairness in Medicaid supplemental needs trusts.
   TITLE III--PROGRAM INTEGRITY, PAYMENT EFFICIENCY, AND ADDITIONAL 
                           MEDICARE POLICIES

Sec. 301. Strengthening penalties for the illegal distribution of a 
                            Medicare, Medicaid, or CHIP beneficiary 
                            identification or billing privileges.
Sec. 302. Civil monetary penalties for violations related to grants, 
                            contracts, and other agreements.
Sec. 303. Authorizing a blanket meaningful use significant hardship 
                            exception.
Sec. 304. Limiting Federal Medicaid reimbursement to States for durable 
                            medical equipment (DME) to Medicare payment 
                            rates.
Sec. 305. Treatment of patient encounters in ambulatory surgical 
                            centers in determining meaningful EHR use.

              TITLE I--CORRECTIONS TO OUTPATIENT PROVISION

SEC. 101. CONTINUING MEDICARE PAYMENT UNDER HOPD PROSPECTIVE PAYMENT 
              SYSTEM FOR SERVICES FURNISHED BY OFF-CAMPUS OUTPATIENT 
              DEPARTMENTS OF PROVIDERS UNDER DEVELOPMENT.

    Section 1833(t) of the Social Security Act (42 U.S.C. 1395l(t)) is 
amended--
            (1) in paragraph (1)(B)(v), by inserting ``, subject to 
        subparagraph (E) of such paragraph,'' after ``2017, by''; and
            (2) in paragraph (21)--
                    (A) in subparagraph (C) by striking ``that are 
                described in paragraph (1)(B)(v) shall be made'' and 
                inserting ``to which paragraph (1)(B)(v) applies shall 
                be the amount determined'';
                    (B) by redesignating subparagraph (E) as 
                subparagraph (F); and
                    (C) by inserting after subparagraph (D) the 
                following new subparagraph:
                    ``(E) Non-application with respect to departments 
                under development.--
                            ``(i) In general.--Paragraph (1)(B)(v) 
                        shall not apply to an off-campus outpatient 
                        department of a provider that is determined by 
                        the Secretary to be under development as of the 
                        date of the enactment of the Bipartisan Budget 
                        Act of 2015.
                            ``(ii) Application.--For purposes of 
                        paragraph (1)(B)(v) and this paragraph, in 
                        determining whether an off-campus outpatient 
                        department of a provider was under development, 
                        the Secretary shall require that as of the date 
                        of the enactment of such Act the department 
                        met--
                                    ``(I) at least one of the 
                                requirements described in clause (iii); 
                                and
                                    ``(II) any additional requirements 
                                the Secretary determines would indicate 
                                whether such off-campus outpatient 
                                department of a provider was under 
                                development as of such date.
                            ``(iii) Requirements described.--The 
                        following requirements are described in this 
                        clause:
                                    ``(I) Architectural plans were 
                                completed.
                                    ``(II) Zoning requirements were met 
                                or a request for approval of meeting 
                                such zoning requirements was submitted 
                                to appropriate agencies.
                                    ``(III) Necessary approvals from 
                                appropriate State agencies were applied 
                                for or received.''.

SEC. 102. MAINTAINING CANCER HOSPITAL ADJUSTMENT UNDER MEDICARE OFF-
              CAMPUS OUTPATIENT DEPARTMENTS OF A PROVIDER PAYMENT 
              POLICY.

    Section 1833(t) of the Social Security Act (42 U.S.C. 1395l(t)) is 
amended--
            (1) in paragraph (1)(B)(v), as amended by section 101(1), 
        by striking ``subparagraph (E)'' and inserting ``subparagraph 
        (F)''; and
            (2) in paragraph (21), as added by section 603 of the 
        Bipartisan Budget Act of 2015 and as amended by section 
        101(2)--
                    (A) by redesignating subparagraphs (D), (E), and 
                (F) as subparagraphs (E), (F), and (G), respectively;
                    (B) by inserting after subparagraph (C) the 
                following new subparagraph:
                    ``(D) Application of cancer hospital adjustment.--
                The Secretary shall apply the adjustment under 
                paragraph (18) to applicable items and services 
                furnished on or after January 1, 2017, by an off-campus 
                outpatient department of a provider (as defined in 
                subparagraph (B)) of a hospital described in section 
                1886(d)(1)(B)(v)--
                            ``(i) as if this paragraph (other than this 
                        subparagraph) and paragraph (1)(B)(v) were not 
                        applicable to such applicable items and 
                        services and such applicable items and services 
                        were covered OPD services and paid under this 
                        subsection; and
                            ``(ii) without application of paragraphs 
                        (2)(E) and (9)(B).''; and
                    (C) in subparagraph (G)(iii), as redesignated by 
                subparagraph (A) of this paragraph, by striking 
                ``subparagraph (D)'' and inserting ``subparagraph 
                (E)''.

 TITLE II--PROVISIONS PROTECTING PEOPLE WITH DISABILITIES AND CHRONIC 
                               CARE NEEDS

SEC. 201. NON-APPLICATION OF MEDICARE FEE SCHEDULE ADJUSTMENTS FOR 
              WHEELCHAIR ACCESSORIES AND SEAT AND BACK CUSHIONS WHEN 
              FURNISHED IN CONNECTION WITH COMPLEX REHABILITATIVE POWER 
              WHEELCHAIRS.

    (a) Non-Application.--
            (1) In general.--Notwithstanding any other provision of 
        law, the Secretary of Health and Human Services shall not, 
        prior to January 1, 2017, use information on the payment 
        determined under the competitive acquisition programs under 
        section 1847 of the Social Security Act (42 U.S.C. 1395w-3)) to 
        adjust the payment amount that would otherwise be recognized 
        under section 1834(a)(1)(B)(ii) of such Act (42 U.S.C. 
        1395m(a)(1)(B)(ii)) for wheelchair accessories (including 
        seating systems) and seat and back cushions when furnished in 
        connection with Group 3 complex rehabilitative power 
        wheelchairs.
            (2) Implementation.--Notwithstanding any other provision of 
        law, the Secretary may implement this subsection by program 
        instruction or otherwise.
    (b) GAO Study and Report.--
            (1) Study.--
                    (A) In general.--The Comptroller General of the 
                United States shall conduct a study on wheelchair 
                accessories (including seating systems) and seat and 
                back cushions furnished in connection with Group 3 
                complex rehabilitative power wheelchairs. Such study 
                shall include an analysis of the following with respect 
                to such wheelchair accessories and seat and back 
                cushions in each of the groups described in clauses (i) 
                through (iii) of subparagraph (B):
                            (i) The item descriptions and associated 
                        HCPCS codes for such wheelchair accessories and 
                        seat and back cushions.
                            (ii) A breakdown of utilization and 
                        expenditures for such wheelchair accessories 
                        and seat and back cushions under title XVIII of 
                        the Social Security Act.
                            (iii) A comparison of the payment amount 
                        under the competitive acquisition program under 
                        section 1847 of such Act (42 U.S.C. 1395w-3) 
                        with the payment amount that would otherwise be 
                        recognized under section 1834 of such Act (42 
                        U.S.C. 1395m), including beneficiary cost 
                        sharing, for such wheelchair accessories and 
                        seat and back cushions.
                            (iv) The aggregate distribution of such 
                        wheelchair accessories and seat and back 
                        cushions furnished under such title XVIII 
                        within each of the groups described in 
                        subparagraph (B).
                            (v) Other areas determined appropriate by 
                        the Comptroller General.
                    (B) Groups described.--The following groups are 
                described in this subparagraph:
                            (i) Wheelchair accessories and seat and 
                        back cushions furnished predominantly with 
                        Group 3 complex rehabilitative power 
                        wheelchairs.
                            (ii) Wheelchair accessories and seat and 
                        back cushions furnished predominantly with 
                        power wheelchairs that are not described in 
                        clause (i).
                            (iii) Other wheelchair accessories and seat 
                        and back cushions furnished with either power 
                        wheelchairs described in clause (i) or (ii).
            (2) Report.--Not later than June 1, 2016, the Comptroller 
        General of the United States shall submit to Congress a report 
        containing the results of the study conducted under paragraph 
        (1), together with recommendations for such legislation and 
        administrative actions as the Comptroller General determines to 
        be appropriate.

SEC. 202. TREATMENT OF INFUSION DRUGS FURNISHED THROUGH DURABLE MEDICAL 
              EQUIPMENT.

    Section 1842(o)(1) of the Social Security Act (42 U.S.C. 
1395u(o)(1)) is amended--
            (1) in subparagraph (C), by inserting ``(and including a 
        drug or biological described in subparagraph (D)(i) furnished 
        during the 6-year period beginning on January 1, 2017)'' after 
        ``2005''; and
            (2) in subparagraph (D)--
                    (A) by striking ``infusion drugs'' and inserting 
                ``infusion drugs or biologicals'' each place it 
                appears; and
                    (B) in clause (i)--
                            (i) by striking ``2004'' and inserting 
                        ``2004 (other than during the 6-year period 
                        beginning on January 1, 2017)''; and
                            (ii) by striking ``for such drug''.

SEC. 203. TRANSITIONAL PAYMENT RULES FOR CERTAIN RADIATION THERAPY 
              SERVICES UNDER THE MEDICARE PHYSICIAN FEE SCHEDULE.

    (a) In General.--Section 1848 of the Social Security Act (42 U.S.C. 
1395w-4) is amended--
            (1) in subsection (b), as amended by section 502 of 
        division O of the Consolidated Appropriations Act, 2016, by 
        adding at the end the following new paragraph:
            ``(11) Special rule for certain radiation therapy 
        services.--The code definitions, the work relative value units 
        under subsection (c)(2)(C)(i), and the direct inputs for the 
        practice expense relative value units under subsection 
        (c)(2)(C)(ii) for radiation treatment delivery and related 
        imaging services (identified in 2016 by HCPCS G-codes G6001 
        through G6015) for the fee schedule established under this 
        subsection for services furnished in 2017 and 2018 shall be the 
        same as such definitions, units, and inputs for such services 
        for the fee schedule established for services furnished in 
        2016.''; and
            (2) in subsection (c)(2)(K), by adding at the end the 
        following new clause:
                            ``(iv) Treatment of certain radiation 
                        therapy services.--Radiation treatment delivery 
                        and related imaging services identified under 
                        subsection (b)(11) shall not be considered as 
                        potentially misvalued services for purposes of 
                        this subparagraph and subparagraph (O) for 2017 
                        and 2018.''.
    (b) Report to Congress on Alternative Payment Model.--Not later 
than 18 months after the date of the enactment of this Act, the 
Secretary of Health and Human Services shall submit to Congress a 
report on the development of an episodic alternative payment model for 
payment under the Medicare program under title XVIII of the Social 
Security Act for radiation therapy services furnished in nonfacility 
settings.

SEC. 204. FAIRNESS IN MEDICAID SUPPLEMENTAL NEEDS TRUSTS.

    (a) In General.--Section 1917(d)(4)(A) of the Social Security Act 
(42 U.S.C. 1396p(d)(4)(A)) is amended by inserting ``the individual,'' 
after ``for the benefit of such individual by''.
    (b) Effective Date.--The amendment made by subsection (a) shall 
apply to trusts established on or after the date of the enactment of 
this Act.

   TITLE III--PROGRAM INTEGRITY, PAYMENT EFFICIENCY, AND ADDITIONAL 
                           MEDICARE POLICIES

SEC. 301. STRENGTHENING PENALTIES FOR THE ILLEGAL DISTRIBUTION OF A 
              MEDICARE, MEDICAID, OR CHIP BENEFICIARY IDENTIFICATION OR 
              BILLING PRIVILEGES.

    Section 1128B(b) of the Social Security Act (42 U.S.C. 1320a-7b(b)) 
is amended by adding at the end the following:
            ``(4) Whoever without lawful authority knowingly and 
        willfully purchases, sells or distributes, or arranges for the 
        purchase, sale, or distribution of a beneficiary identification 
        number or unique health identifier for a health care provider 
        under title XVIII, title XIX, or title XXI shall be imprisoned 
        for not more than 10 years or fined not more than $500,000 
        ($1,000,000 in the case of a corporation), or both.''.

SEC. 302. CIVIL MONETARY PENALTIES FOR VIOLATIONS RELATED TO GRANTS, 
              CONTRACTS, AND OTHER AGREEMENTS.

    (a) In General.--Section 1128A of the Social Security Act (42 
U.S.C. 1320a-7a) is amended by adding at the end the following new 
subsection:
    ``(o) Any person (including an organization, agency, or other 
entity, but excluding a program beneficiary, as defined in subsection 
(r)(4)) that, with respect to a grant, contract, or other agreement for 
which the Secretary of Health and Human Services provides funding--
            ``(1) knowingly presents or causes to be presented a 
        specified claim (as defined in subsection (r)(6)) under such 
        grant, contract, or other agreement that the person knows or 
        should know is false or fraudulent;
            ``(2) knowingly makes, uses, or causes to be made or used 
        any false statement, omission, or misrepresentation of a 
        material fact in any application, proposal, bid, progress 
        report, or other document that is required to be submitted in 
        order to directly or indirectly receive or retain funds 
        provided in whole or in part by such Secretary pursuant to such 
        grant, contract, or other agreement;
            ``(3) knowingly makes, uses, or causes to be made or used, 
        a false record or statement material to a false or fraudulent 
        specified claim under such grant, contract, or other agreement;
            ``(4) knowingly makes, uses, or causes to be made or used, 
        a false record or statement material to an obligation to pay or 
        transmit funds or property to such Secretary with respect to 
        such grant, contract, or other agreement, or knowingly conceals 
        or knowingly and improperly avoids or decreases an obligation 
        to pay or transmit funds or property to such Secretary with 
        respect to such grant, contract, or other agreement; or
            ``(5) fails to grant timely access, upon reasonable request 
        (as defined by such Secretary in regulations), to the Inspector 
        General of the Department, for the purpose of audits, 
        investigations, evaluations, or other statutory functions of 
        such Inspector General in matters involving such grants, 
        contracts, or other agreements,
shall be subject, in addition to any other penalties that may be 
prescribed by law, to a civil money penalty in cases under paragraph 
(1), of not more than $10,000 for each specified claim; in cases under 
paragraph (2), not more than $50,000 for each false statement, 
omission, or misrepresentation of a material fact; in cases under 
paragraph (3), not more than $50,000 for each false record or 
statement; in cases under paragraph (4), not more than $50,000 for each 
false record or statement or $10,000 for each day that the person 
knowingly conceals or knowingly and improperly avoids or decreases an 
obligation to pay; or in cases under paragraph (5), not more than 
$15,000 for each day of the failure described in such paragraph. In 
addition, in cases under paragraphs (1) and (3), such a person shall be 
subject to an assessment of not more than 3 times the amount claimed in 
the specified claim described in such paragraph in lieu of damages 
sustained by the United States or a specified State agency because of 
such specified claim, and in cases under paragraphs (2) and (4), such a 
person shall be subject to an assessment of not more than 3 times the 
total amount of the funds described in paragraph (2) or (4), 
respectively (or, in the case of an obligation to transmit property to 
the Secretary Health and Human Services described in paragraph (4), of 
the value of the property described in such paragraph) in lieu of 
damages sustained by the United States or a specified State agency 
because of such case. In addition, the Secretary of Health and Human 
Services may make a determination in the same proceeding to exclude the 
person from participation in the Federal health care programs (as 
defined in section 1128B(f)(1)) and to direct the appropriate State 
agency to exclude the person from participation in any State health 
care program.
    ``(p) The provisions of subsections (c), (d), and (g) shall apply 
to a civil money penalty or assessment under subsection (o) in the same 
manner as such provisions apply to a penalty, assessment, or proceeding 
under subsection (a).
    ``(q) With respect to a penalty or assessment under subsection (o), 
the Inspector General of the Department is authorized to receive, and 
to retain for current use, such amounts of such penalty or assessment 
as are necessary to provide reimbursement for the costs of conducting 
investigations and audits with respect to such subsection and for 
monitoring compliance plans with respect to such subsection when such 
penalty or assessment is ordered by a court, voluntarily agreed to by 
the payor, or otherwise. Funds received by such Inspector General as 
reimbursement under the preceding sentence shall be deposited to the 
credit of the appropriations from which initially paid, or to 
appropriations for similar purposes currently available at the time of 
deposit, and shall remain available for obligation for 1 year from the 
date of the deposit of such funds.
    ``(r) For purposes of this subsection and subsections (o), (p), and 
(q):
            ``(1) The term `Department' means the Department of Health 
        and Human Services.
            ``(2) The term `material' means having a natural tendency 
        to influence, or be capable of influencing, the payment or 
        receipt of money or property.
            ``(3) The term `other agreement' includes a cooperative 
        agreement, scholarship, fellowship, loan, subsidy, payment for 
        a specified use, donation agreement, award, or sub-award 
        (regardless of whether one or more of the persons entering into 
        the agreement is a contractor or sub-contractor).
            ``(4) The term `program beneficiary' means, in the case of 
        a grant, contract, or other agreement designed to accomplish 
        the objective of awarding or otherwise furnishing benefits or 
        assistance to individuals and for which the Secretary of Health 
        and Human Services provides funding, an individual who applies 
        for, or who receives, such benefits or assistance from such 
        grant, contract, or other agreement. Such term does not 
        include, with respect to such grant, contract, or other 
        agreement, an officer, employee, or agent of a person or entity 
        that receives such grant or that enters into such contract or 
        other agreement.
            ``(5) The term `recipient' includes a sub-recipient or 
        subcontractor.
            ``(6) The term `specified claim' means any application, 
        request, or demand under a grant, contract, or other agreement 
        for money or property, whether or not the United States or a 
        specified State agency has title to the money or property, that 
        is not a claim (as defined in subsection (i)(2)) and that--
                    ``(A) is presented or caused to be presented to an 
                officer, employee, or agent of the Department or agency 
                thereof, or of any specified State agency; or
                    ``(B) is made to a contractor, grantee, or any 
                other recipient if the money or property is to be spent 
                or used on the Department's behalf or to advance a 
                Department program or interest, and if the Department--
                            ``(i) provides or has provided any portion 
                        of the money or property requested or demanded; 
                        or
                            ``(ii) will reimburse such contractor, 
                        grantee or other recipient for any portion of 
                        the money or property which is requested or 
                        demanded.
            ``(7) The term `specified State agency' means an agency of 
        a State government established or designated to administer or 
        supervise the administration of a grant, contract, or other 
        agreement funded in whole or in part by the Secretary of Health 
        and Human Services.
    ``(s) For purposes of subsection (o), the term `obligation' means 
an established duty, whether or not fixed, arising from an express or 
implied contractual, grantor-grantee, or licensor-licensee 
relationship, for a fee-based or similar relationship, from statute or 
regulation, or from the retention of any overpayment.''.
    (b) Conforming Amendments.--Section 1128A of the Social Security 
Act (42 U.S.C. 1320a-7a) is amended--
            (1) in subsection (d)--
                    (A) in paragraph (1), by inserting ``or specified 
                claims'' after ``claims''; and
                    (B) in paragraph (2), by inserting ``or specified 
                claims'' after ``claims'';
            (2) in subsection (e), by inserting ``or specified claim'' 
        after ``claim''; and
            (3) in subsection (f)--
                    (A) by inserting ``or specified claim (as defined 
                in subsection (r)(6))'' after ``district where the 
                claim'';
                    (B) by inserting ``(or, with respect to a person 
                described in subsection (o), the person)'' after 
                ``claimant'';
                    (C) by inserting ``that are not received by the 
                Inspector General of the Department of Health and Human 
                Services under subsection (q) as reimbursement'' after 
                ``amounts recovered''; and
                    (D) by inserting ``(or, in the case of a penalty or 
                assessment under subsection (o), by a specified State 
                agency (as defined in subsection (r)(7))'' after ``or a 
                State agency''.

SEC. 303. AUTHORIZING A BLANKET MEANINGFUL USE SIGNIFICANT HARDSHIP 
              EXCEPTION.

    (a) Physicians' Services.--Section 1848(a)(7)(B) of the Social 
Security Act (42 U.S.C. 1395w-4(a)(7)(B)) is amended by inserting ``(or 
through a blanket exception with respect to the payment adjustment for 
2017, but only if a request for such exception is filed no later than 
June 30, 2016)'' after ``on a case-by-case basis''.
    (b) Hospital Services.--Section 1886(b)(3)(B)(ix)(II) of the Social 
Security Act (42 U.S.C. 1395ww(b)(3)(B)(ix)(II)) is amended by 
inserting ``(or through a blanket exception with respect to the payment 
adjustment for fiscal year 2017, but only if a request for such 
exception is filed no later than June 30, 2016)'' after ``on a case-by-
case basis''.
    (c) Implementation Authority.--The Secretary of Health and Human 
Services may implement the amendments made by this section by interim 
final rule with comment period.

SEC. 304. LIMITING FEDERAL MEDICAID REIMBURSEMENT TO STATES FOR DURABLE 
              MEDICAL EQUIPMENT (DME) TO MEDICARE PAYMENT RATES.

    Section 1903(i)(27) of the Social Security Act (42 U.S.C. 
1396b(i)(27)), as added by section 503(a)(1) of division O of the 
Consolidated Appropriations Act, 2016, is amended by striking ``January 
1, 2019'' and inserting ``October 1, 2018''.

SEC. 305. TREATMENT OF PATIENT ENCOUNTERS IN AMBULATORY SURGICAL 
              CENTERS IN DETERMINING MEANINGFUL EHR USE.

    Section 1848(o)(2) of the Social Security Act (42 U.S.C. 1395w-
4(o)(2)) is amended by adding at the end the following new 
subparagraph:
                    ``(E) Treatment of patient encounters at ambulatory 
                surgical centers.--
                            ``(i) In general.--Subject to clause (ii), 
                        with respect to a payment adjustment applied 
                        under subsection (a)(7)(A), for 2017 or a 
                        subsequent year, any patient encounter of an 
                        eligible professional occurring at an 
                        ambulatory surgical center (described in 
                        section 1833(i)(1)(A)) shall not be treated as 
                        a patient encounter in determining whether an 
                        eligible professional qualifies as a meaningful 
                        EHR user. Notwithstanding any other provision 
                        of law, the Secretary may implement this clause 
                        by program instruction or otherwise.
                            ``(ii) Sunset.--Clause (i) shall no longer 
                        apply as of the first payment year that begins 
                        more than 3 years after the date the Secretary 
                        determines, through notice and comment 
                        rulemaking, that certified EHR technology is 
                        applicable to the ambulatory surgical center 
                        setting.''.
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