[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 3503 Introduced in Senate (IS)]

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118th CONGRESS
  1st Session
                                S. 3503

To direct the Secretary of Health and Human Services to revise certain 
  regulations in relation to the Medicare shared savings program and 
 other alternative payment arrangements to encourage participation in 
                 such program, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           December 13, 2023

 Mr. Whitehouse (for himself, Mr. Barrasso, Mr. Welch, Mr. Tillis, Mr. 
Cassidy, Mr. Thune, and Mrs. Blackburn) introduced the following bill; 
     which was read twice and referred to the Committee on Finance

_______________________________________________________________________

                                 A BILL


 
To direct the Secretary of Health and Human Services to revise certain 
  regulations in relation to the Medicare shared savings program and 
 other alternative payment arrangements to encourage participation in 
                 such program, 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.

    This Act may be cited as the ``Value in Health Care Act of 2023''.

SEC. 2. ENCOURAGING PARTICIPATION IN THE MEDICARE SHARED SAVINGS 
              PROGRAM.

    (a) Removing Barriers to Shared Savings Program Participation.--
Prior to the beginning of the first performance year (as defined in 
section 425.20 of title 42, Code of Federal Regulations (or a successor 
regulation)) that begins at least 90 days after the date of enactment 
of this Act, the Secretary of Health and Human Services shall revise 
part 425 of title 42, Code of Federal Regulations, or any successor 
regulation, to--
            (1) eliminate any distinction in requirements in such part 
        between a low revenue ACO and a high revenue ACO (as such terms 
        are defined in section 425.20 of title 42, Code of Federal 
        Regulations, or a successor regulation) and, with respect to 
        such a low revenue ACO or high revenue ACO and except as 
        otherwise modified in this Act, apply the requirements of such 
        part as such requirements applied to low revenue ACOs on July 
        1, 2024, except that the Secretary of Health and Human Services 
        may, if the Secretary determines appropriate, apply less 
        stringent requirements than those requirements that applied to 
        low revenue ACOs as of such date; and
            (2) remove any provision requiring an accountable care 
        organization to assume responsibility for repayment of any 
        shared losses or participate in a two-sided risk model before 
        the organization has participated for at least 3 years in any 
        program subject to the provisions of part 425 of title 42, Code 
        of Federal Regulations, or any successor regulation, provided 
        that such an organization shall be allowed to elect to 
        participate in such two-sided risk models or models requiring 
        repayment of such losses.
    (b) Financial Methodology Enhancements To Promote Success of Shared 
Savings Program.--Prior to the beginning of the first performance year 
(as defined for purposes of subsection (a)) that begins at least 90 
days after the date of enactment of this Act, the Secretary shall--
            (1) ensure that any methodology used to establish, adjust, 
        or update benchmark expenditures be developed and implemented 
        in a clear and transparent manner, including by making publicly 
        available sufficient information and data to allow interested 
        members of the public to replicate the methodology used by the 
        Secretary and to evaluate the accuracy of the Secretary's 
        benchmark expenditure calculations;
            (2) implement a process that allows ACOs to appeal the 
        accuracy of benchmark expenditures in a hearing before an 
        administrative law judge, and ensure that any such appeal be 
        heard within a 90-day period beginning on the date a request 
        for hearing is filed; and
            (3) require that any regional contributions or expenditures 
        (below the national level) used directly or indirectly to 
        establish, update, or adjust benchmark expenditures be 
        calculated in a manner that excludes the expenditure impact of 
        ACOs in the applicable region, including any regional 
        expenditures associated with Medicare fee-for-service 
        beneficiaries assigned to such ACOs.
    (c) Shared Savings Option.--Prior to the beginning of the first 
performance year (as defined for purposes of subsection (a)) that 
begins after the date of the enactment of this Act, and notwithstanding 
any other provision of law, the Secretary of Health and Human Services 
shall establish a voluntary full-risk option under the Medicare Shared 
Savings Program (as described in section 1899 of the Social Security 
Act (42 U.S.C. 1395jjj)) under which the percent of shared savings paid 
to an ACO under section 1899(d)(2) of the Social Security Act (42 
U.S.C. 1395jjj(d)(2)) shall be set at 100 percent, with the ACO bearing 
commensurate risk of any shared losses.
    (d) Report.--Not later than 90 days after the date of enactment of 
this Act, the Administrator of the Centers for Medicare & Medicaid 
Services shall submit to the appropriate committees of Congress a 
report on mechanisms that the agency can take to avoid penalizing ACOs 
for achieving cost savings and account for regional variations in 
spending in a manner that prevents arbitrary Medicare Shared Savings 
Program outcomes for ACOs. Such report shall include specific actions 
that the Centers for Medicare & Medicaid Services can take to develop 
and implement effective benchmarks and guardrails for any changes made 
to the agency's benchmarking policies.

SEC. 3. ADVANCED PAYMENT MODEL INCENTIVE, PARTICIPATION, AND THRESHOLD 
              MODIFICATIONS.

    (a) In General.--Section 1833(z) of the Social Security Act (42 
U.S.C. 1395l(z)) is amended--
            (1) in paragraph (1)(A)--
                    (A) by striking ``with 2025'' and inserting ``with 
                2027''; and
                    (B) by inserting ``, or, with respect to 2026 and 
                2027, the scaled percentage amount (as defined in 
                paragraph (2)(C)(vi))'' after ``3.5 percent'';
            (2) in paragraph (2)(C)--
                    (A) in clause (i), by striking ``75 percent'' and 
                inserting ``the applicable percent (as defined in 
                clause (iv)) for such year'';
                    (B) in clause (ii)(I)--
                            (i) in the matter preceding item (aa), by 
                        striking ``75 percent'' and inserting ``the 
                        applicable percent (as defined in clause (iv)) 
                        for such year''; and
                            (ii) in item (bb)--
                                    (I) by striking ``and other than 
                                payments made under title XIX'' and 
                                inserting ``other than payments made 
                                under title XIX''; and
                                    (II) by striking ``State program 
                                under that title),'' and inserting 
                                ``State program under that title, and 
                                other than payments made by payers in 
                                which no payment or program meeting the 
                                requirements described in clause 
                                (iii)(II) is available from the payer 
                                for participation by the eligible 
                                professional)''; and
                    (C) by adding at the end the following new clauses:
                            ``(iv) Applicable percent defined.--For 
                        purposes of clauses (i) and (ii), subject to 
                        clause (v), the term `applicable percent' 
                        means--
                                    ``(I) for each of 2026 and 2027, 50 
                                percent; and
                                    ``(II) for 2028 and each subsequent 
                                year, a percent specified by the 
                                Secretary, but in no case less than the 
                                percent specified under this clause for 
                                the preceding year or more than the 
                                lesser of 75 percent or 5 percentage 
                                points higher than the percent 
                                specified under this clause for the 
                                preceding year.
                            ``(v) Alternative applicable percent.--
                        Notwithstanding any other provision of law, the 
                        Secretary may define the applicable percent for 
                        purposes of clause (i) or (ii) of this 
                        subparagraph or a given alternative payment 
                        model (or for purposes of partial qualifying 
                        APM participants under section 
                        1848(q)(1)(C)(iii)(III)) to mean a percentage 
                        amount that is lower than the amount (or range) 
                        otherwise specified in clause (iv) (or, as 
                        applicable, under section 
                        1848(q)(1)(C)(iii)(III)), if the Secretary 
                        determines there is good cause to support such 
                        alternative applicable percent, including where 
                        the design of an alternative payment model 
                        warrants use of such alternative applicable 
                        percent. In no case shall the Secretary 
                        designate an alternative applicable percent 
                        that exceeds the maximum applicable percent 
                        specified in clause (iv) (or, as applicable, 
                        under section 1848(q)(1)(C)(iii)(III)) for the 
                        applicable year.
                            ``(vi) Scaled percentage amount.--For 
                        purposes of paragraphs (1)(A) and (4)(B):
                                    ``(I) In general.--The term `scaled 
                                percentage amount' means a 
                                progressively scaled percentage amount 
                                designated by the Secretary. Subject to 
                                subclause (II), the Secretary shall 
                                determine an appropriate progressive 
                                percentage scale for different 
                                categories of eligible professionals 
                                based on programmatic interests in 
                                efficiency, equity, and alignment of 
                                appropriate incentives.
                                    ``(II) Maximum amount.--
                                            ``(aa) In general.--The 
                                        maximum scaled percentage 
                                        amount shall be 5 percent and, 
                                        subject to item (bb), such 
                                        maximum amount shall apply to 
                                        an eligible professional with 
                                        respect to a year if the 
                                        eligible professional meets or 
                                        exceeds the threshold under 
                                        clause (i) or (ii) with respect 
                                        to such year (determined based 
                                        on application of the 
                                        applicable percent, as defined 
                                        under clause (iv)).
                                            ``(bb) Clarification.--In 
                                        no case may an eligible 
                                        professional who meets or 
                                        exceeds the threshold under 
                                        clause (i) or (ii) with respect 
                                        to a year through application 
                                        of an alternative applicable 
                                        percent under clause (v) that 
                                        is less than the applicable 
                                        percent (as defined under 
                                        clause (iv)) be eligible for 
                                        the maximum scaled percentage 
                                        amount under this clause.''; 
                                        and
            (3) in paragraph (4)(B), by inserting ``, or, with respect 
        to 2026 and each subsequent year, the scaled percentage amount 
        (as defined in paragraph (2)(C)(vi))'' after ``3.5 percent''.
    (b) Technical Assistance.--The Secretary of Health and Human 
Services shall provide education and technical assistance to ACOs and 
other types of providers (as defined under section 414.1305 of title 
42, Code of Federal Regulations (or a successor regulation)) that the 
Secretary determines to target or otherwise operate in rural or 
medically underserved areas or to involve material participation by 
small practice or safety net groups of providers of services and 
suppliers. Such education and technical assistance may include 
infrastructure support or access to data analytics to support ACO 
implementation in such rural or medically underserved areas or to 
benefit small practice or safety net groups of providers of services 
and suppliers, or other groups of providers of services and suppliers 
deemed to require additional support, such as providers of services or 
suppliers that are new to APMs, including specialists.
    (c) Partial Qualifying APM Participant Modification.--Section 
1848(q)(1)(C)(iii)(III) of the Social Security Act (42 U.S.C. 1395w-
4(q)(1)(C)(iii)(III)) is amended--
            (1) in item (aa), by striking ``50 percent was instead a 
        reference to 40 percent'' and inserting ``the applicable 
        percent were instead a reference to the percent that is 10 
        percentage points less than the applicable percent''; and
            (2) in item (bb)--
                    (A) by striking ``75 percent'' and inserting ``the 
                applicable percent''; and
                    (B) by striking ``50 percent'' and inserting ``the 
                percent that is 10 percentage points less than the 
                applicable percent''.

SEC. 4 STUDY ON ALTERNATIVE PAYMENT MODELS AND MEDICARE ADVANTAGE.

    Not later than 18 months after the date of enactment of this Act, 
the Comptroller General of the United States shall conduct a study and 
submit to the appropriate committees of Congress a report evaluating 
the benefits and flexibilities provided to support alternative payment 
models (as defined under section 414.1305 of title 42, Code of Federal 
Regulations (or a successor regulation)) and Medicare Advantage 
organizations (as defined in section 1859(a)(1) of the Social Security 
Act (42 U.S.C. 1395w-28(a)(1))). The objective of such study and report 
shall be to better understand the effect of different policies under 
the Medicare program under title XVIII of the Social Security Act (42 
U.S.C. 1395 et seq.) with respect to such models and organizations on 
different types of beneficiaries and participating providers, including 
specialty, safety net, small practice, and rural providers, with the 
goal of identifying areas to enhance alignment between such policies 
and benchmarks, including through mechanisms that could facilitate 
greater alignment in such policies and benchmarks and to encourage the 
adoption of value-based arrangements across payers or that could 
otherwise increase parity in the flexibilities available to alternative 
payment models and Medicare Advantage organizations under the Medicare 
program.
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