[Congressional Record Volume 144, Number 134 (Wednesday, September 30, 1998)]
[Senate]
[Pages S11193-S11196]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FEDERAL EMPLOYEES HEALTH CARE PROTECTION ACT OF 1998
Mr. SHELBY. Mr. President, I ask unanimous consent that the Senate
now proceed to the consideration of Calendar No. 484, H.R. 1836.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
A bill (H.R. 1836) to amend chapter 89, title 5, United
States Code, to improve administration of sanctions against
unfit health care providers under the Federal Employees
Health Benefits Program, and for other purposes.
There being no objection, the Senate proceeded to consider the
bill which had been reported from the Committee on Governmental
Affairs, with amendments; as follows:
(The parts of the bill intended to be stricken are shown in
boldface brackets and the parts of the bill intended to be
inserted are shown in italic.)
H.R. 1836
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 ``Federal Employees Health
Care Protection Act of [1997] 1998''.
SEC. 2. DEBARMENT AND OTHER SANCTIONS.
(a) Amendments.--Section 8902a of title 5, United States
Code, is amended--
(1) in subsection (a)--
(A) in paragraph (1)--
(i) by striking ``and'' at the end of subparagraph (B);
(ii) by striking the period at the end of subparagraph (C)
and inserting ``; and''; and
(iii) by adding at the end the following:
``(D) the term `should know' means that a person, with
respect to information, acts in deliberate ignorance of, or
in reckless disregard of, the truth or falsity of the
information, and no proof of specific intent to defraud is
required;''; and
(B) in paragraph (2)(A), by striking ``subsection (b) or
(c)'' and inserting ``subsection (b), (c), or (d)'';
(2) in subsection (b)--
(A) by striking ``The Office of Personnel Management may
bar'' and inserting ``The Office of Personnel Management
shall bar''; and
(B) by amending paragraph (5) to read as follows:
``(5) Any provider that is currently debarred, suspended,
or otherwise excluded from any procurement or nonprocurement
activity (within the meaning of section 2455 of the Federal
Acquisition Streamlining Act of 1994).'';
(3) by redesignating subsections (c) through (i) as
subsections (d) through (j), respectively, and by inserting
after subsection (b) the following:
``(c) The Office may bar the following providers of health
care services from participating in the program under this
chapter:
``(1) Any provider--
``(A) whose license to provide health care services or
supplies has been revoked, suspended, restricted, or not
renewed, by a State licensing authority for reasons relating
to the provider's professional competence, professional
performance, or financial integrity; or
``(B) that surrendered such a license while a formal
disciplinary proceeding was pending before such an authority,
if the proceeding concerned the provider's professional
competence, professional performance, or financial integrity.
``(2) Any provider that is an entity directly or indirectly
owned, or with a control interest of 5 percent or more held,
by an individual who has been convicted of any offense
described in subsection (b), against whom a civil monetary
penalty has been assessed under subsection (d), or who has
been debarred from participation under this chapter.
``(3) Any individual who directly or indirectly owns or has
a control interest in a sanctioned entity and who knows or
should know of the action constituting the basis for the
entity's conviction of any offense described in subsection
(b), assessment with a civil monetary penalty under
subsection (d), or debarment from participation under this
chapter.
``(4) Any provider that the Office determines, in
connection with claims presented under this chapter, has
charged for health care services or supplies in an amount
substantially in excess of such provider's customary charge
for such services or supplies (unless the Office finds there
is good cause for such charge), or charged for health care
services or supplies which are substantially in excess of the
needs of the covered individual or which are of a quality
that fails to meet professionally recognized standards for
such services or supplies.
``(5) Any provider that the Office determines has committed
acts described in subsection (d).
Any determination under paragraph (4) relating to whether a
charge for health care services or supplies is substantially
in excess of the needs of the covered individual shall
[[Page S11194]]
be made by trained reviewers based on written medical
protocols developed by physicians. In the event such a
determination cannot be made based on such protocols, a
physician in an appropriate specialty shall be consulted.'';
(4) in subsection (d) (as so redesignated by paragraph (3))
by amending paragraph (1) to read as follows:
``(1) in connection with claims presented under this
chapter, that a provider has charged for a health care
service or supply which the provider knows or should have
known involves--
``(A) an item or service not provided as claimed,
``(B) charges in violation of applicable charge limitations
under section 8904(b), or
``(C) an item or service furnished during a period in which
the provider was debarred from participation under this
chapter pursuant to a determination by the Office under this
section, other than as permitted under subsection
(g)(2)(B);'';
(5) in subsection (f) (as so redesignated by paragraph (3))
by inserting after ``under this section'' the first place it
appears the following: ``(where such debarment is not
mandatory)'';
(6) in subsection (g) (as so redesignated by paragraph
(3))--
(A) by striking ``(g)(1)'' and all that follows through the
end of paragraph (1) and inserting the following:
``(g)(1)(A) Except as provided in subparagraph (B),
debarment of a provider under subsection (b) or (c) shall be
effective at such time and upon such reasonable notice to
such provider, and to carriers and covered individuals, as
shall be specified in regulations prescribed by the Office.
Any such provider that is debarred from participation may
request a hearing in accordance with subsection (h)(1).
``(B) Unless the Office determines that the health or
safety of individuals receiving health care services warrants
an earlier effective date, the Office shall not make a
determination adverse to a provider under subsection (c)(5)
or (d) until such provider has been given reasonable notice
and an opportunity for the determination to be made after a
hearing as provided in accordance with subsection (h)(1).'';
(B) in paragraph (3)--
(i) by inserting ``of debarment'' after ``notice''; and
(ii) by adding at the end the following: ``In the case of a
debarment under paragraph (1), (2), (3), or (4) of subsection
(b), the minimum period of debarment shall not be less than 3
years, except as provided in paragraph (4)(B)(ii).'';
(C) in paragraph (4)(B)(i)(I) by striking ``subsection (b)
or (c)'' and inserting ``subsection (b), (c), or (d)''; and
(D) by striking paragraph (6);
(7) in subsection (h) (as so redesignated by paragraph (3))
by striking ``(h)(1)'' and all that follows through the end
of paragraph (2) and inserting the following:
``(h)(1) Any provider of health care services or supplies
that is the subject of an adverse determination by the Office
under this section shall be entitled to reasonable notice and
an opportunity to request a hearing of record, and to
judicial review as provided in this subsection after the
Office renders a final decision. The Office shall grant a
request for a hearing upon a showing that due process rights
have not previously been afforded with respect to any finding
of fact which is relied upon as a cause for an adverse
determination under this section. Such hearing shall be
conducted without regard to subchapter II of chapter 5 and
chapter 7 of this title by a hearing officer who shall be
designated by the Director of the Office and who shall not
otherwise have been involved in the adverse determination
being appealed. A request for a hearing under this subsection
shall be filed within such period and in accordance with such
procedures as the Office shall prescribe by regulation.
``(2) Any provider adversely affected by a final decision
under paragraph (1) made after a hearing to which such
provider was a party may seek review of such decision in the
United States District Court for the District of Columbia or
for the district in which the plaintiff resides or has his or
her principal place of business by filing a notice of appeal
in such court within 60 days after the date the decision is
issued, and by simultaneously sending copies of such notice
by certified mail to the Director of the Office and to the
Attorney General. In answer to the appeal, the Director of
the Office shall promptly file in such court a certified copy
of the transcript of the record, if the Office conducted a
hearing, and other evidence upon which the findings and
decision complained of are based. The court shall have power
to enter, upon the pleadings and evidence of record, a
judgment affirming, modifying, or setting aside, in whole
or in part, the decision of the Office, with or without
remanding the case for a rehearing. The district court
shall not set aside or remand the decision of the Office
unless there is not substantial evidence on the record,
taken as whole, to support the findings by the Office of a
cause for action under this section or unless action taken
by the Office constitutes an abuse of discretion.''; and
(8) in subsection (i) (as so redesignated by paragraph
(3))--
(A) by striking ``subsection (c)'' and inserting
``subsection (d)''; and
(B) by adding at the end the following:
``The amount of a penalty or assessment as finally determined
by the Office, or other amount the Office may agree to in
compromise, may be deducted from any sum then or later owing
by the United States to the party against whom the penalty or
assessment has been levied.''.
(b) Effective Date.--
(1) In general.--Except as provided in paragraph (2), the
amendments made by this section shall take effect on the date
of the enactment of this Act.
(2) Exceptions.--(A) Paragraphs (2), (3), and (5) of
section 8902a(c) of title 5, United States Code, as amended
by subsection (a)(3), shall apply only to the extent that the
misconduct which is the basis for debarment under such
paragraph (2), (3), or (5), as applicable, occurs after the
date of the enactment of this Act.
(B) Paragraph (1)(B) of section 8902a(d) of title 5, United
States Code, as amended by subsection (a)(4), shall apply
only with respect to charges which violate section 8904(b) of
such title for items or services furnished after the date of
the enactment of this Act.
(C) Paragraph (3) of section 8902a(g) of title 5, United
States Code, as amended by subsection (a)(6)(B), shall apply
only with respect to debarments based on convictions
occurring after the date of the enactment of this Act.
SEC. 3. MISCELLANEOUS AMENDMENTS RELATING TO THE HEALTH
BENEFITS PROGRAM FOR FEDERAL EMPLOYEES.
(a) Definition of a Carrier.--Paragraph (7) of section 8901
of title 5, United States Code, is amended by striking
``organization;'' and inserting ``organization and an
association of organizations or other entities described in
this paragraph sponsoring a health benefits plan;''.
(b) Service Benefit Plan.--Paragraph (1) of section 8903 of
title 5, United States Code, is amended by striking ``plan,''
and inserting ``plan, which may be underwritten by
participating affiliates licensed in any number of States,''.
(c) Preemption.--Section 8902(m) of title 5, United States
Code, is amended by striking ``(m)(1)'' and all that follows
through the end of paragraph (1) and inserting the following:
``(m)(1) The terms of any contract under this chapter which
relate to the nature, provision, or extent of coverage or
benefits (including payments with respect to benefits) shall
supersede and preempt any State or local law, or any
regulation issued thereunder, which relates to health
insurance or plans.''.
SEC. 4. CONTINUED HEALTH INSURANCE COVERAGE FOR CERTAIN
INDIVIDUALS.
(a) Enrollment in Chapter 89 Plan.--For purposes of chapter
89 of title 5, United States Code, any period of enrollment--
(1) in a health benefits plan administered by the Federal
Deposit Insurance Corporation before the termination of such
plan on [January 3, 1998] or before January 2, 1999, or
(2) subject to subsection (c), in a health benefits plan
(not under chapter 89 of such title) with respect to which
the eligibility of any employees or retired employees of the
Board of Governors of the Federal Reserve System terminates
on [January 3, 1998] or before January 2, 1999,
shall be deemed to be a period of enrollment in a health
benefits plan under chapter 89 of such title.
(b) Continued Coverage.--(1) Subject to subsection (c), any
individual who, on [January 3, 1998] or before January 2,
1999, is enrolled in a health benefits plan described in
subsection (a)(1) or (2) may enroll in an approved health
benefits plan under chapter 89 of title 5, United States
Code, either as an individual or for self and family, if,
after taking into account the provisions of subsection (a),
such individual--
(A) meets the requirements of such chapter for eligibility
to become so enrolled as an employee, annuitant, or former
spouse (within the meaning of such chapter); or
(B) would meet those requirements if, to the extent such
requirements involve either retirement system under such
title 5, such individual satisfies similar requirements or
provisions of the Retirement Plan for Employees of the
Federal Reserve System.
Any determination under subparagraph (B) shall be made under
guidelines which the Office of Personnel Management shall
establish in consultation with the Board of Governors of the
Federal Reserve System.
(2) Subject to subsection (c), any individual who, on
[January 3, 1998] or before January 2, 1999, is entitled to
continued coverage under a health benefits plan described in
subsection (a)(1) or (2) shall be deemed to be entitled to
continued coverage under section 8905a of title 5, United
States Code, but only for the same remaining period as would
have been allowable under the health benefits plan in which
such individual was enrolled on [January 3, 1998] or before
January 2, 1999, if--
(A) such individual had remained enrolled in such plan; and
(B) such plan did not terminate, or the eligibility of such
individual with respect to such plan did not terminate, as
described in subsection (a).
(3) Subject to subsection (c), any individual (other than
an individual under paragraph (2)) who, on [January 3, 1998]
or before January 2, 1999, is covered under a health benefits
plan described in subsection (a)(1) or (2) as an unmarried
dependent child, but who does not then qualify for coverage
under chapter 89 of title 5, United States Code, as a family
member (within the meaning of such chapter) shall be deemed
to be entitled
[[Page S11195]]
to continued coverage under section 8905a of such title, to
the same extent and in the same manner as if such individual
had, on [January 3, 1998] or before January 2, 1999, ceased
to meet the requirements for being considered an unmarried
dependent child of an enrollee under such chapter.
(4) Coverage under chapter 89 of title 5, United States
Code, pursuant to an enrollment under this section shall
become effective on [January 4, 1998] January 3, 1999 or such
earlier date as established by the Office of Personnel
Management after consultation with the Federal Deposit
Insurance Corporation or the Board of Governors of the
Federal Reserve System, as appropriate.
(c) Eligibility for FEHBP Limited to Individuals Losing
Eligibility Under Former Health Plan.--Nothing in subsection
(a)(2) or any paragraph of subsection (b) (to the extent such
paragraph relates to the plan described in subsection (a)(2))
shall be considered to apply with respect to any individual
whose eligibility for coverage under such plan does not
involuntarily terminate on [January 3, 1998] or before
January 2, 1999.
(d) Transfers to the Employees Health Benefits Fund.--The
Federal Deposit Insurance Corporation and the Board of
Governors of the Federal Reserve System shall transfer to the
Employees Health Benefits Fund under section 8909 of title 5,
United States Code, amounts determined by the Director of the
Office of Personnel Management, after consultation with the
Federal Deposit Insurance Corporation and the Board of
Governors of the Federal Reserve System, to be necessary to
reimburse the Fund for the cost of providing benefits under
this section not otherwise paid for by the individuals
covered by this section. The amounts so transferred shall be
held in the Fund and used by the Office of Personnel
Management in addition to amounts available under section
8906(g)(1) of such title.
(e) Administration and Regulations.--The Office of
Personnel Management--
(1) shall administer the provisions of this section to
provide for--
(A) a period of notice and open enrollment for individuals
affected by this section; and
(B) no lapse of health coverage for individuals who enroll
in a health benefits plan under chapter 89 of title 5, United
States Code, in accordance with this section; and
(2) may prescribe regulations to implement this section.
SEC. 5. FULL DISCLOSURE IN HEALTH PLAN CONTRACTS.
The Office of Personnel Management shall encourage carriers
offering health benefits plans described by section 8903 or
section 8903a of title 5, United States Code, with respect to
contractual arrangements made by such carriers with any
person for purposes of obtaining discounts from providers for
health care services or supplies furnished to individuals
enrolled in such plan, to seek assurance that the conditions
for such discounts are fully disclosed to the providers who
grant them.
SEC. 6. PROVISIONS RELATING TO CERTAIN PLANS THAT HAVE
DISCONTINUED THEIR PARTICIPATION IN FEHBP.
(a) Authority to Readmit.--
(1) In general.--Chapter 89 of title 5, United States Code,
is amended by inserting after section 8903a the following:
``Sec. 8903b. Authority to readmit an employee organization
plan
``(a) In the event that a plan described by section 8903(3)
or 8903a is discontinued under this chapter (other than in
the circumstance described in section 8909(d)), that
discontinuation shall be disregarded, for purposes of any
determination as to that plan's eligibility to be considered
an approved plan under this chapter, but only for purposes of
any contract year later than the third contract year
beginning after such plan is so discontinued.
``(b) A contract for a plan approved under this section
shall require the carrier--
``(1) to demonstrate experience in service delivery within
a managed care system (including provider networks)
throughout the United States; and
``(2) if the carrier involved would not otherwise be
subject to the requirement set forth in section 8903a(c)(1),
to satisfy such requirement.''.
(2) Conforming amendment.--The analysis for chapter 89 of
title 5, United States Code, is amended by inserting after
the item relating to section 8903a the following:
``8903b. Authority to readmit an employee organization plan.''.
(3) Applicability.--
(A) In general.--The amendments made by this subsection
shall apply as of the date of enactment of this Act,
including with respect to any plan which has been
discontinued as of such date.
(B) Transition rule.--For purposes of applying section
8903b(a) of title 5, United States Code (as amended by this
subsection) with respect to any plan seeking to be readmitted
for purposes of any contract year beginning before January 1,
2000, such section shall be applied by substituting ``second
contract year'' for ``third contract year''.
(b) Treatment of the Contingency Reserve of a Discontinued
Plan.--
(1) In general.--Subsection (e) of section 8909 of title 5,
United States Code, is amended by striking ``(e)'' and
inserting ``(e)(1)'' and by adding at the end the following:
``(2) Any crediting required under paragraph (1) pursuant
to the discontinuation of any plan under this chapter shall
be completed by the end of the second contract year beginning
after such plan is so discontinued.
``(3) The Office shall prescribe regulations in accordance
with which this subsection shall be applied in the case of
any plan which is discontinued before being credited with the
full amount to which it would otherwise be entitled based on
the discontinuation of any other plan.''.
(2) Transition rule.--In the case of any amounts remaining
as of the date of enactment of this Act in the contingency
reserve of a discontinued plan, such amounts shall be
disposed of in accordance with section 8909(e) of title 5,
United States Code, as amended by this subsection, by--
(A) the deadline set forth in section 8909(e) of such title
(as so amended); or
(B) if later, the end of the 6-month period beginning on
such date of enactment.
SEC. 7. MAXIMUM PHYSICIANS COMPARABILITY ALLOWANCE PAYABLE.
(a) In General.--Paragraph (2) of section 5948(a) of title
5, United States Code, is amended by striking ``$20,000'' and
inserting ``$30,000''.
(b) Authority to Modify Existing Agreements.--
(1) In general.--Any service agreement under section 5948
of title 5, United States Code, which is in effect on the
date of enactment of this Act may, with respect to any period
of service remaining in such agreement, be modified based on
the amendment made by subsection (a).
(2) Limitation.--A modification taking effect under this
subsection in any year shall not cause an allowance to be
increased to a rate which, if applied throughout such year,
would cause the limitation under section 5948(a)(2) of such
title (as amended by this section), or any other applicable
limitation, to be exceeded.
(c) Rule of Construction.--Nothing in this section shall be
considered to authorize additional or supplemental
appropriations for the fiscal year in which occurs the date
of enactment of this Act.
SEC. 8. CLARIFICATION RELATING TO SECTION 8902(K).
Section 8902(k) of title 5, United States Code, is
amended--
(1) by redesignating paragraph (2) as paragraph (3); and
(2) by inserting after paragraph (1) the following:
``(2) Nothing in this subsection shall be considered to
preclude a health benefits plan from providing direct access
or direct payment or reimbursement to a provider in a health
care practice or profession other than a practice or
profession listed in paragraph (1), if such provider is
licensed or certified as such under Federal or State law.''.
Mr. DASCHLE. Mr. President, I would like to enter into a colloquy
with Senators Harkin, Cochran, and Thompson concerning the treatment of
audiological services under the Federal Employee health Benefits
Program, or FEHBP.
According to the American Academy of Audiology, hearing loss affects
approximately 28 million people in the United States today (about 1 out
of every 10 people), and this number is growing as our population ages.
This is a matter on which Senator Harkin and I, and also Senator
Cochran, have worked for a number of years. It raises significant
issues concerning the quality and cost-effectiveness of our hearing
care and rehabilitation system, and indeed our entire health care
system, and I hope this body soon will consider these issues fully.
Section 8 of H.R. 1836 is intended to make clear that FEHBP plans can
authorize direct services by, and direct reimbursement to audiologists
and other licensed health professionals. I believe the Office of
Personnel Management (OPM) should make it clear in their next call
letter that audiology services provided directly by an audiologist can
be covered.
Mr. HARKIN. Mr. President, I want to thank the Senator from South
Dakota. This an important issue. Audiologic services are critical in
the diagnosis and management of hearing loss. I am concerned that under
FEHBP, an efficient and effective avenue to appropriate care is
unavailable because FEHBP law does not explicitly identify the option
of direct access to audiologists.
Senator Cochran introduced, and I supported, along with Senator Frist
and Pryor, legislation in the 104th Congress to ensure that FEHBP
beneficiaries who require audiological services would have the option
of direct access to them.
Earlier this year, I received a letter from Kenneth W. Kizer, M.D.,
Under Secretary for Health with the Department of Veterans Affairs. In
1992, the VA instituted a policy allowing veterans who suspect a
hearing loss to make appointments directly with an audiologist.
According to Dr. Kizer, ``The VA experience suggests that providing
direct access to audiologists for civilian
[[Page S11196]]
federal employees will result in high quality hearing care and reduce
the cost of services.''
We are not talking about mandating additional benefits. In addition,
I believe it would be advisable to add provider non-discrimination
assurances to FEHBP plans.
Of course, these matters involve a number of complicated issues, and
to this point, the Governmental Affairs Committee has been unable to
hold hearings to consider those issues. I would appreciate hearing
Senator Cochran's and Senator Thompson's sense of what can be done, in
this Congress or the next, to ensure that those issues are fully
considered.
Mr. COCHRAN. Mr. President, as noted by the Senator from Iowa, I
supported legislation in the last Congress to address this problem, and
I remain committed to ensuring that FEHBP beneficiaries receive
quality, cost-effective, hearing care coverage.
As he also noted, there are a number of medical, insurance and public
policy issues involved, All these issues need to be considered, as well
as the concerns of all members of the hearing health care team,
including the Audiologists, the American Academy of Otolaryngology-Head
and Neck Surgery and the International Hearing Society.
Whether in this Congress, or the next, I am committed to doing what
is necessary to enable this body to understand these issues, and to
determine the best way to address them, for the benefit of children and
others, who need hearing health services.
Mr. THOMPSON. Mr. President, I appreciate Senator Cochran's comments.
I am confident my colleagues will agree that any changes to the FEHBP
need to be considered carefully through the legislative process in
order to ensure the integrity of the program, preservation of choice
for enrollees, and competition among plans. Toward that end, I look
forward to Senator Daschle and Senator Harkin joining Senator Cochran
and me in supporting passage of H.R. 1836.
Mr. DASCHLE. Mr. President, I would like to thank my colleagues for
this colloquy.
Mr. SHELBY. I ask unanimous consent that the committee amendment be
agreed to, the bill be considered read a third time and passed, the
motion to reconsider be laid upon the table, and that any statement
relating to the bill be printed in the Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
The committee amendment was agreed to.
The bill (H.R. 1836), as amended, was considered read the third time
and passed.
____________________