[Congressional Record Volume 147, Number 27 (Monday, March 5, 2001)]
[Senate]
[Pages S1818-S1823]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
By Mr. MURKOWSKI (for himself, Mr. Kerry, Mr. Kyl, Mr. Smith of
New Hampshire, Mr. Helms, Mr. Reid, Mrs. Lincoln, and Mr.
Hagel):
S. 452. A bill to amend title XVIII of the Social Security Act to
ensure that the Secretary of Health and Human Services provides
appropriate guidance to physicians, providers of services, and
ambulance providers that are attempting to properly submit claims under
the medicare program to ensure that the Secretary does not target
inadvertent billing errors; to the Committee on Finance.
Mr. MURKOWSKI. Mr. President, right now, all across America, Medicare
beneficiaries are seeking medical care from a flawed health care
system. Reduced benefit packages, ever escalating costs, and limited
access in rural areas are just a few of the problems our system faces
on a daily basis. For these reasons, Congress must continue to move
towards the modernization of Medicare. But as we address the needs of
beneficiaries, we must not turn our back upon the very providers that
seniors rely upon for their care.
Who are providers? They are the physicians, the hospitals, the
nursing homes, and others who deliver quality care to our needy
Medicare population. They are the backbone of our complex health care
network. When our nation's seniors need care, it is the provider who
heals, not the health insurer, and certainly not the federal
government.
But more, and more often, seniors are being told by providers that
they don't accept Medicare. This is becoming even more common in rural
areas, where the number of physicians is limited and access to quality
care is extremely restricted. Quite simply, beneficiaries are being
told that their insurance is simply not wanted. Why? Well it's not as
simple as low reimbursement rates. In fact it's much more complex.
The infrastructure that manages the Medicare program, the Health Care
Financing Administration, HCFA, and its network of contractors, have
built up a system designed to block care and micro-manage independent
practices. Providers simply cannot afford to keep up with the seemingly
endless number of complex, redundant, and unnecessary regulations. And
if providers do participate? Well, a simple administrative error in
submitting a claim could subject them to heavy-handed audits and the
financial devastation of their practice. Should we force providers to
choose between protecting their practice and caring for seniors?
I believe the answer is no. For this reason, I am introducing the
``Medicare Education and Regulatory Fairness Act of 2001.'' Co-
sponsored by Senators Kerry, Kyl, Helms, Reid, Lincoln, Hagel, and Bob
Smith, this legislation will restore fairness to the Medicare system.
It will allow providers to practice medicine without fearing the
threats, intimidation, and aggressive tactics of a faceless
bureaucratic machine.
Most importantly, this bill will reform the flawed appeals process
within HCFA. Currently, a provider who allegedly has received an
overpayment is forced to choose between three options: admit the
overpayment, submit additional information to mitigate the charge, or
appeal the decision. However, providers who choose to submit
[[Page S1819]]
additional evidence must subject their entire practice to review and
waive their appeal rights. That's right--to submit additional evidence
you must waive your right to an appeal!
And what is the result of this maddening system that runs contrary to
our nation's history of fair and just administrative decisions? Often,
providers are intimidated into accepting the arbitrary decision of an
auditor employed by a HCFA contractor. Sometimes, they are even forced
to pull out of the Medicare program. In the end, our senior population
suffers.
I was particularly heartened to see that our new President agrees
with the spirit of this bill. In his recent budget, the administration
stated that the ``current system is too complex, too centralized, and
becoming more so each year. Burdensome regulations and other central
directives force providers to take time away from patients to comply
with excessive and complex paperwork.'' I completely agree.
Under my bill, providers will be allowed to retain their appeal
rights should they choose to first submit additional evidence to
mitigate the charge. Many providers receive an overpayment as the
result of a simple administrative mistake. For cases not involving
fraud, a provider will be able to return that overpayment within twelve
months without fear of prosecution. This is a common sense approach,
and will not lead to any additional costs to the Medicare system.
To bring additional fairness to the system, my bill will prohibit the
retroactive application of regulations, and allow providers to
challenge the constitutionality of HCFA regulations. Further, it will
prohibit the crippling recovery of overpayments during an appeal, and
bar the unfair method of withholding valid future payments to recover
past overpayments. These common sense measures maintain the financial
viability of medical practices during the resolution of payment
controversies, and restore fundamental fairness to the dispute
resolution procedures existing within HCFA.
Like many of our nation's problems, the key to improvement is found
in education. For this reason, I have included language that stipulates
that at least 10 percent of the Medicare Integrity Program funds, and
two percent of carrier funds, must be devoted to provider education
programs. Providers cannot be expected to comply with the endless
number of Medicare regulations if they are not shown how to submit
clean claims. We must ensure that providers are given the information
needed to eliminate future billing errors, and improve the
responsiveness of HCFA.
It is with the goal of protecting our Medicare population, and the
providers who tend care, that leads me to introduce the ``Medicare
Education and Regulatory Fairness Act of 2001.'' This bill will ensure
that providers are treated with the respect that they deserve, and that
Medicare beneficiaries aren't told that their health insurance isn't
wanted. We owe it to our nation's seniors. I urge immediate action on
this worthy bill.
I ask unanimous consent that the text of the bill be printed in the
Record.
There being no objection, the bill was ordered to be printed in the
Record, as follows:
S. 452
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
Education and Regulatory Fairness Act of 2001''.
(b) Table of Contents.--The table of contents of this Act
is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings.
Sec. 3. Definitions.
TITLE I--REGULATORY REFORM
Sec. 101. Prospective application of certain regulations.
Sec. 102. Requirements for judicial and regulatory challenges of
regulations.
Sec. 103. Prohibition of recovering past overpayments by certain means.
Sec. 104. Prohibition of recovering past overpayments if appeal
pending.
Sec. 105. Prohibition of random prepayment audits.
Sec. 106. Exception on prohibition of waiving medicare copayment.
Sec. 107. Effective date.
TITLE II--APPEALS PROCESS REFORMS
Sec. 201. Construction of hearing rights related to decisions to deny
or not renew a physician enrollment agreement.
Sec. 202. Reform of post-payment audit process.
Sec. 203. Definitions relating to physicians, providers of services,
and providers of ambulance services.
Sec. 204. Right to appeal on behalf of deceased beneficiaries.
Sec. 205. Effective date.
TITLE III--EDUCATION COMPONENTS
Sec. 301. Designated funding levels for physician and provider
education.
Sec. 302. Information requests.
TITLE IV--SUSTAINABLE GROWTH RATE REFORMS
Sec. 401. Inclusion of regulatory costs in the calculation of the
sustainable growth rate.
TITLE V--POLICY DEVELOPMENT REGARDING E&M GUIDELINES
Sec. 501. Policy development regarding E&M Documentation Guidelines.
SEC. 2. FINDINGS.
Congress finds the following:
(1) Congress should focus more resources on and work with
physicians and health care providers to combat fraud in the
medicare program.
(2) The overwhelming majority of physicians and other
providers in the United States are law-abiding citizens who
provide important services and care to patients each day.
(3) Physicians and other providers of services that
participate in the medicare program often have trouble wading
through a confusing and sometimes even contradictory maze of
medicare regulations. Keeping track of the morass of medicare
regulations detracts from the time that physicians have to
treat patients.
(4) Due to the overly complex nature of medicare
regulations and the risk of being the subject of an
aggressive government investigation, many physicians are
leaving the medicare program, limiting the number of medicare
patients they see, or refusing to accept new medicare
patients at all. If this trend continues, health care for the
millions of patients nationwide who depend on medicare will
be seriously compromised. Congress has an obligation to
prevent this from happening.
(5) Regulatory fairness for physicians and providers as
well as increased access to education about medicare
regulations are necessary to preserve the integrity of our
health care system and provide for the health of our
population.
SEC. 3. DEFINITIONS.
In this Act:
(1) Billing.--The term ``billing'' includes any requirement
related to the content and timing of an order for care or a
plan of treatment by a physician, a provider of service, or a
provider of ambulance services.
(2) Carrier.--The term ``carrier'' means a carrier (as
defined in section 1842(f) of the Social Security Act (42
U.S.C. 1395u(f))) with a contract under title XVIII of such
Act to administer benefits under part B of such title.
(3) Extrapolation.--The term ``extrapolation'' has the
meaning given such term in section 1861(ww)(1) of the Social
Security Act (as added by section 203(a)).
(4) Fiscal intermediary.--The term ``fiscal intermediary''
means a fiscal intermediary (as defined in section 1816(a) of
the Social Security Act (42 U.S.C. 1395h(a))) with an
agreement under section 1816 of such Act to administer
benefits under part A or B of such title.
(5) HCFA.--The term ``HCFA'' means the Health Care
Financing Administration.
(6) Medicare program.--The term ``medicare program'' means
the health benefits program under title XVIII of the Social
Security Act (42 U.S.C. 1395 et seq.).
(7) Physician.--The term ``physician'' has the meaning
given such term in section 1861(r) of the Social Security Act
(42 U.S.C. 1395x(r)).
(8) Prepayment review.--The term ``prepayment review'' has
the meaning given such term in section 1861(ww)(2) of the
Social Security Act (as added by section 203(a)).
(9) Provider of services.--The term ``provider of
services'' has the meaning given such term in section 1861(u)
of the Social Security Act (42 U.S.C. 1395x(u)).
(10) Provider of ambulance services.--The term ``provider
of ambulance services'' means a provider of ambulance
services described in section 1861(s)(7) of the Social
Security Act (42 U.S.C. 1395x(s)(7)).
(11) Secretary.--The term ``Secretary'' means the Secretary
of Health and Human Services.
TITLE I--REGULATORY REFORM
SEC. 101. PROSPECTIVE APPLICATION OF CERTAIN REGULATIONS.
Section 1871(a) of the Social Security Act (42 U.S.C.
1395hh(a)) is amended by adding at the end the following new
paragraphs:
``(3) Any regulation described under paragraph (2) shall
not take effect earlier than the effective date of the final
regulation. Any regulation described under such paragraph
that applies to an agency action, including any agency
determination, shall only apply as that regulation is in
effect at the time that agency action is taken.
``(4) The Secretary shall issue a final rule within 12
months of the date of publication
[[Page S1820]]
of an interim final rule. Such final rule shall provide
responses to comments submitted in response to the interim
final rule. Such final rule shall not establish or change a
legal standard not raised in the interim final rule unless a
new 60-day comment period is provided.
``(5) Carriers, fiscal intermediaries, and States pursuant
to an agreement under section 1864 shall not apply new policy
guidances or policy changes retroactively to services
provided before the date the new policy was issued.''.
SEC. 102. REQUIREMENTS FOR JUDICIAL AND REGULATORY CHALLENGES
OF REGULATIONS.
(a) Right To Challenge Constitutionality and Statutory
Authority of HCFA Regulations.--Section 1872 of the Social
Security Act (42 U.S.C. 1395ii) is amended to read as
follows:
``application of certain provisions of title ii
``Sec. 1872. Subject to subparagraphs (A), (B), (D), and
(E) of section 1848(i)(1), the provisions of sections 206 and
216(j), and of subsections (a), (d), (e), (h), (i), (j), (k),
and (l) of section 205, shall also apply with respect to this
title to the same extent as they are applicable with respect
to title II, except that--
``(1) in applying such provisions with respect to this
title, any reference therein to the Commissioner of Social
Security or the Social Security Administration shall be
considered a reference to the Secretary or the Department of
Health and Human Services, respectively; and
``(2) section 205(h) shall not apply with respect to any
action brought against the Secretary under section 1331,
1346, 1361, or 2201 of title 28, United States Code,
regardless of whether such action is unrelated to a specific
determination of the Secretary, that challenges--
``(A) the constitutionality of any provision of this title;
``(B) the constitutionality of substantive or interpretive
rules of general applicability issued by the Secretary to
carry out this title'';
``(C) the Secretary's statutory authority to promulgate
such substantive or interpretive rules of general
applicability; or
``(D) a finding of good cause under subparagraph (B) of the
third sentence of section 553(b)(3) of title 5, United States
Code, if used in the promulgation of such substantive or
interpretive rules of general applicability.''.
(b) Administrative and Judicial Review of Secretary
Determinations.--Section 1866(h) of the Act (42 U.S.C.
1395cc(h)) is amended--
(1) in paragraph (1), by striking ``(1)'' and all that
follows and inserting the following: ``(1) Except as provided
in paragraph (3), an institution or agency dissatisfied with
a determination by the Secretary that it is not a provider of
services or with a determination described in subsection
(b)(2) (regardless of whether such determination has been
made by the Secretary or by a State pursuant to an agreement
entered into with the Secretary under section 1864 and
regardless of whether the Secretary has imposed or may impose
a remedy, penalty, or other sanction on the institution or
agency in connection with such determination) shall be
entitled to a hearing thereon by the Secretary (after
reasonable notice) to the same extent as is provided in
section 205(b), and to judicial review of the Secretary's
final decision after such hearing as is provided in section
205(g), except that, in so applying such sections and in
applying section 205(l) thereto, any reference therein to the
Commissioner of Social Security or the Social Security
Administration shall be considered a reference to the
Secretary or the Department of Health and Human Services,
respectively, and such hearings are subject to the deadlines
specified in paragraph (2)f.'';
(2) by redesignating paragraph (2) as paragraph (3);
(3) by inserting after paragraph (1) the following new
paragraph:
``(2)(A)(i) Except as provided in clause (ii), an
administrative law judge shall conduct and conclude a hearing
on a determination described in subsection (b)(2) and render
a decision on such hearing by not later than the end of the
90-day period beginning on the date a request for hearing has
been timely filed.
``(ii) The 90-day period under clause (i) shall not apply
in the case of a motion or stipulation by the party
requesting the hearing to waive such period.
``(B) The Department Appeals Board of the Department of
Health and Human Services shall conduct and conclude a review
of the decision on a hearing described in subparagraph (A)
and make a decision or remand the case to the administrative
law judge for reconsideration by not later than the end of
the 90-day period beginning on the date a request for review
has been timely filed.
``(C) In the case of a failure by an administrative law
judge to render a decision by the end of the period described
in subparagraph (A)(i), the party requesting the hearing may
request a review by the Departmental Appeals Board of the
Departmental of Health and Human Services, notwithstanding
any requirements for a hearing for purposes of the party's
right to such a review.
``(D) In the case of a request described in subparagraph
(D), the Departmental Appeals Board shall review the case de
novo. In the case of the failure of the Departmental Appeals
Board to render a decision on such hearing by not later than
the end of the 60-day period beginning on the date a request
for such a Department Appeals Board hearing has been filed,
the party requesting the hearing may seek judicial review of
the Secretary's decision, notwithstanding any requirements
for a hearing for purposes of the party's right to such
review.
``(E) In the case of a request described in subparagraph
(D), the court shall review the case de novo.''; and
(4) by adding at the end the following new paragraph:
``(4) An institution or agency dissatisfied with a finding
or determination by the Secretary, or by a State pursuant to
an agreement under section 1864, that the institution of
agency if out of compliance with any standard or condition of
participation under this title (except a determination
described in subsection (b)(2)) shall be entitled to a formal
review or reconsideration of the finding or determination, in
accordance with the regulations prescribed by the Secretary,
prior to the imposition of any remedy, penalty, corrective
action, or other sanction in connection with the finding or
determination.''.
SEC. 103. PROHIBITION OF RECOVERING PAST OVERPAYMENTS BY
CERTAIN MEANS.
(a) In General.--Subject to section 104 and except as
provided in subsection (b) and notwithstanding sections
1815(a), 1842(b), and 1861(v)(1)(A)(ii) of the Social
Security Act (42 U.S.C. 1395g(a), 1395u(a), and
1395x(v)(1)(A)(ii)), or any other provision of law, for
purposes of applying sections 1842(b)(3)(B)(ii),
1866(a)(1)(B)(ii), 1870, and 1893 of such Act (42 U.S.C.
1395u(b)(3)(B)(ii), 1395cc(a)(1)(B)(ii), 1395gg, and 1395ddd)
to pending and future audits, the Secretary shall give a
physician, provider of services, or provider of ambulance
services the option of entering into an arrangement to offset
alleged overpayments against future payments or entering into
a repayment plan with its carrier or fiscal intermediary to
recoup such an overpayment. Under such an arrangement or
plan, a physician, provider of services, or provider of
ambulance services shall have up to 3 years to offset or
repay the overpayment if the amount of such overpayment
exceeds $5,000.
(b) Exception.--This section shall not apply to cases in
which the Secretary finds clear and convincing evidence of
fraud or similar fault on the part of the physician, provider
of services, or provider of ambulance services or in the case
of overpayments for which an offset arrangement is in place
as of the date of the enactment of this Act.
SEC. 104. PROHIBITION OF RECOVERING PAST OVERPAYMENTS IF
APPEAL PENDING.
Notwithstanding any provision of law, for purposes of
applying sections 1842(b)(3)(B)(ii), 1866(a)(1)(B)(ii), 1870,
and 1893 of the Social Security Act (42 U.S.C.
1395u(b)(3)(B)(ii), 1395cc(a)(1)(B)(ii), 1395gg, and
1395ddd), the Secretary may not take any action (or authorize
any other person, including any fiscal intermediary, carrier,
and contractor under section 1893 of such Act (42 U.S.C.
1395ddd)) to recoup an overpayment or to impose a penalty
during the period in which a physician, provider of services,
or provider of ambulance services is appealing a
determination that such an overpayment has been made or the
amount of the overpayment.
SEC. 105. PROHIBITION OF RANDOM PREPAYMENT AUDITS.
Carriers may not, prior to paying a claim under the
medicare program, demand the production of records or
documentation absent cause.
SEC. 106. EXCEPTION ON PROHIBITION OF WAIVING MEDICARE
COPAYMENT.
(a) In General.--Section 1128A(i)(6)(A) of the Social
Security Act (42 U.S.C. 1320a-7a(i)(6)(A)) is amended by
inserting ``, except for written, mailed communication with
existing patients,'' before ``waiver is not''.
(b) Effective Date.--The amendment made by subsection (a)
shall apply to communications made on or after the date of
the enactment of this Act.
SEC. 107. EFFECTIVE DATE.
Except as otherwise provided in section 106(b), the
amendments made by this title shall take effect 60 days after
the date of enactment of this Act.
TITLE II--APPEALS PROCESS REFORMS
SEC. 201. CONSTRUCTION OF HEARING RIGHTS RELATED TO DECISIONS
TO DENY OR NOT RENEW A PHYSICIAN ENROLLMENT
AGREEMENT.
Section 1842 of the Social Security Act (42 U.S.C. 1395u)
is amended by adding at the end the following new subsection:
``(u) A carrier decision to deny an initial physician
enrollment application and a carrier decision not to renew a
physician enrollment agreement shall be treated as an initial
determination subject to the same course of appeals as other
initial determinations under section 1869.''.
SEC. 202. REFORM OF POST-PAYMENT AUDIT PROCESS.
(a) Carriers.--Section 1842 of the Social Security Act (42
U.S.C. 1395u), as amended by section 201, is further amended
by adding at the end the following new subsection:
``(v) In carrying out its contract under subsection (b)(3),
with respect to physicians' services or ambulance services,
the carrier shall provide for the recoupment of overpayments
in the following manner:
``(1)(A) During the 1-year period (or 18-month period in
the case of a physician who is in a practice with fewer than
10 full-time
[[Page S1821]]
equivalent employees, including physicians) beginning on the
date on which a physician or provider of ambulance services
receives an overpayment, the physician or provider of
ambulance services may return the overpayment without penalty
or interest to the carrier making such overpayment if--
``(i) the carrier has not requested any relevant record or
file; or
``(ii) the case has not been referred before the date of
repayment to the Department of Justice or the Office of
Inspector General.
``(B) If a physician or provider of ambulance services
returns an overpayment under subparagraph (A), neither the
carrier, contractor under section 1893, nor any law
enforcement agency may begin an investigation or target such
physician or provider of ambulance services based on any
claim associated with the amount the physician or provider of
ambulance services has repaid.
``(2) If a carrier has decided to conduct a post-payment
audit of the physician or provider of ambulance services, the
carrier shall send written notice to the physician or
provider of ambulance services. If the physician or provider
of ambulance services practices in a rural area (as defined
in section 1886(d)(2)(D)), such notice must be sent by
registered mail.
``(3) The carrier or a contractor under section 1893 may
not recoup or offset payment amounts based on extrapolation
(as defined in section 1861(ww)(1)) for the first time that
the physician or provider of ambulance services is alleged as
a result of a post-payment audit to have received an
overpayment.
``(4) As part of any written consent settlement
communication, the carrier or a contractor under section 1893
shall clearly state that the physician or provider of
ambulance services may submit additional information
(including evidence other than medical records) to dispute
the overpayment amount without waiving any administrative
remedy or right to appeal the amount of the overpayment.
``(5)(A) Each consent settlement communication from the
carrier or a contractor under section 1893 shall clearly
state that prepayment review (as defined in section
1861(ww)(2)) may be imposed where the physician or provider
of ambulance services submits an actual or projected
repayment to the carrier or a contractor under section 1893.
Subject to subparagraph (D), any prepayment review shall
cease when the physician or provider of ambulance services
has submitted claims, found by carrier to be covered services
and coded properly for the same services that were the basis
for instituting the prepayment review, in a 180-day period or
after processing claims of at least 75 percent of the volume
of the claims (whichever occurs first) received by the
carrier in the full month preceding the start of the
prepayment review. The 180-day period begins with the date of
the carrier's written notification that the physician or
provider of ambulance services is being placed on prepayment
review.
``(B) Prepayment review may not be applied under this part
as a result of the voluntary submission of a claim or record
under section 1897(b)(2) or as a result of information
provided pursuant to a request under section 302(b) of the
Medicare Education and Regulatory Fairness Act of 2001.
``(C) Carrier prepayment and coverage policies and claims
processing screens used to identify claims for medical review
must be incorporated as part of the education programs on
medicare policy and proper coding made available to
physicians and providers of ambulance services.
``(D) The time and percentage claim limitations in
paragraph (5)(A) shall not apply to cases that have been
referred to the Department of Justice or the Office of the
Inspector General.''.
(b) Fiscal Intermediaries.--Section 1816 of the Social
Security Act (42 U.S.C. 1395h) is amended by adding at the
end the following new subsection:
``(m) In carrying out its agreement under this section,
with respect to payment for items and services furnished
under this part, the fiscal intermediary shall provide for
the recoupment of overpayments in the following manner:
``(1)(A) During the 1-year period beginning on the date on
which a provider of services receives an overpayment, the
provider of services may return the overpayment without
penalty or interest to the fiscal intermediary making such
overpayment if--
``(i) the fiscal intermediary has not requested any
relevant record or file; or
``(ii) the case has not been referred before the date of
repayment to the Department of Justice or the Office of
Inspector General.
``(B) If a provider of services returns an overpayment
under subparagraph (A), neither the fiscal intermediary,
contractor under section 1893, nor any law enforcement agency
may begin an investigation or target such provider of
services based on any claim associated with the amount the
provider of services has repaid.
``(2) If a fiscal intermediary has decided to conduct a
post-payment audit of the provider of services, the fiscal
intermediary shall send written notice to the provider of
services. If the provider of services practices in a rural
area (as defined in section 1886(d)(2)(D)), such notice must
be sent by registered mail.
``(3) The fiscal intermediary or a contractor under section
1893 may not recoup or offset payment amounts based on
extrapolation (as defined in section 1861(ww)(1)) for the
first time that the provider of services is alleged as a
result of a post-payment audit to have received an
overpayment.
``(4) As part of any written consent settlement
communication, the fiscal intermediary or a contractor under
section 1893 shall clearly state that the provider of
services may submit additional information (including
evidence other than medical records) to dispute the
overpayment amount without waiving any administrative remedy
or right to appeal the amount of the overpayment.
``(5)(A) Each consent settlement communication from the
fiscal intermediary or a contractor under section 1893 shall
clearly state that prepayment review (as defined in section
1861(ww)(2)) may be imposed where the provider of services
submits an actual or projected repayment to the fiscal
intermediary or a contractor under section 1893. Subject to
subparagraph (D), any prepayment review shall cease when the
provider of services has submitted claims, found by the
fiscal intermediary to be covered services and coded properly
for the same services that were the basis for instituting the
prepayment review, in a 180-day period or after processing
claims of at least 75 percent of the volume of the claims
(whichever occurs first) received by the fiscal intermediary
in the full month preceding the start of the prepayment
review. The 180-day period begins with the date of the fiscal
intermediary's written notification that the provider of
services is being placed on prepayment review.
``(B) Prepayment review may not be applied under this part
as a result of the voluntary submission of a claim, cost
report, or record under section 1897(b)(2) or as a result of
information provided pursuant to a request under section
302(b) of the Medicare Education and Regulatory Fairness Act
of 2001.
``(C) Fiscal intermediary prepayment and coverage policies
and claims processing screens used to identify claims for
medical review must be incorporated as part of the education
programs on medicare policy and proper coding made available
to providers of services.
``(D) The time and percentage claim limitations in
paragraph (5)(A) shall not apply to cases that have been
referred to the Department of Justice or the Office of the
Inspector General.''.
SEC. 203. DEFINITIONS RELATING TO PHYSICIANS, PROVIDERS OF
SERVICES, AND PROVIDERS OF AMBULANCE SERVICES.
(a) In General.--Section 1861 of the Social Security Act
(42 U.S.C. 1395 et seq.), as amended by section 102(b) and
105(b) of the Medicare, Medicaid, and SCHIP Benefits
Improvement and Protection Act of 2000 (as enacted into law
by section 1(a)(6) of Public Law 106-554), is amended by
adding at the end the following new subsection:
``Definitions Relating to Physicians, Providers of Services, and
Providers of Ambulance Services
``(ww) For purposes of provisions of this title relating to
physicians, providers of services, and providers of ambulance
services:
``(1) Extrapolation.--The term `extrapolation' means the
application of an overpayment dollar amount to a larger
grouping of claims than those in the audited sample to
calculate a projected overpayment figure.
``(2) Prepayment review.--The term `prepayment review'
means a carrier's and fiscal intermediary's practice of
withholding claim reimbursements from physicians, providers
of services, and providers of ambulance services pending
review of a claim even if the claims have been properly
submitted and reflect medical services provided.''.
SEC. 204. RIGHT TO APPEAL ON BEHALF OF DECEASED
BENEFICIARIES.
Notwithstanding section 1870 of the Social Security Act (42
U.S.C. 1395gg) or any other provision of law, the Secretary
shall permit any physician, provider of services, and
provider of ambulance services to appeal any determination of
the Secretary under the medicare program on behalf of a
deceased beneficiary where no substitute party is available.
SEC. 205. EFFECTIVE DATE.
The amendments made by this title shall take effect at the
end of the 180-day period beginning on the date of the
enactment of this Act.
TITLE III--EDUCATION COMPONENTS
SEC. 301. DESIGNATED FUNDING LEVELS FOR PHYSICIAN AND
PROVIDER EDUCATION.
(a) Education Programs for Physicians, Providers of
Services, and Providers of Ambulance Services.--Title XVIII
of the Social Security Act (42 U.S.C. 1395 et seq.) is
amended by adding at the end the following new section:
``education programs for physicians, providers of services, and
providers of ambulance services
``Sec. 1897. (a) Education Program Defined.--In this
section, the term `education programs' means programs
undertaken in conjunction with health care associations that
focus on current billing, coding, cost reporting, and
documentation laws, regulations, program memoranda,
instructions to regional offices, and fiscal intermediary and
carrier manual instructions that place special emphasis on
billing, coding, cost reporting, and documentation errors
that the Secretary has found occur frequently and remedies
for these improper billing, coding, cost reporting, and
documentation practices.
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``(b) Conduct of Education Programs.--
``(1) In general.--Carriers, fiscal intermediaries, and
contractors under section 1893 shall conduct education
programs for any physician (or a designee), provider of
services, or provider of ambulance services that submits a
claim or cost report under paragraph (2)(A). Such carriers,
intermediaries, and contractors under section 1893 shall
conduct outreach to specifically contact physicians and their
designees, providers of services, and providers of ambulance
services with fewer than 10 full-time-equivalent employees
(including physicians) to implement education programs
tailored to their education needs and in proximity to their
practices.
``(2) Provider education.--
``(A) Submission of claims, cost reports, and records.--Any
physician, provider of services, or provider of ambulance
services may voluntarily submit any present or prior claim,
cost report, or medical record to the carrier or fiscal
intermediary to determine whether the billing, coding, and
documentation associated with the claim or cost report is
appropriate.
``(B) Prohibition of extrapolation.--No claim submitted
under subparagraph (A) is subject to any type of
extrapolation (as defined in section 1861(ww)(1)).
``(C) Safe harbor.--No submission of a claim, cost report,
or record under this section shall result in the carrier,
fiscal intermediary, a contractor under section 1893, or any
law enforcement agency beginning an investigation or
targeting an investigation based on any claim, cost report,
or record submitted under such subparagraph.
``(3) Treatment of claims.--If the carrier or fiscal
intermediary finds a claim or cost report under paragraph (2)
to be improper, the physician, provider of services, or
provider of ambulance services shall have the following
options:
``(A) Correction of problems.--To correct the
documentation, coding, or billing problem to appropriately
substantiate the claim or cost report and either--
``(i) remit the actual overpayment; or
``(ii) receive the appropriate additional payment from the
carrier or fiscal intermediary.
``(B) Repayment.--To repay the actual overpayment amount if
the service is excluded from medicare coverage under this
title or if adequate documentation does not exist.
``(4) Prohibition of physician and provider of services
tracking.--Carriers, fiscal intermediaries, and contractors
under section 1893 may not use the record of attendance or
information gathered during an education program conducted
under this section or the inquiry regarding claims or cost
reports under paragraph (2)(A) to select, identify, or track
such physician, provider of services, or provider of
ambulance services for the purpose of conducting any type of
audit or prepayment review.''.
(b) Funding of Education Programs.--
(1) Medicare integrity program.--Section 1893(b)(4) of such
Act (42 U.S.C. 1395ddd(b)(4)) is amended by adding at the end
the following new sentence: ``No less than 10 percent of the
program funds shall be devoted to the education programs for
physicians, providers of services, and providers of ambulance
services under section 1897.''.
(2) Carriers.--Section 1842(b)(3)(H) of such Act (42 U.S.C.
1395u(b)(3)(H)) is amended by adding at the end the following
new clause:
``(iii) No less than 2 percent of carrier funds shall be
devoted to the education programs for physicians under
section 1897.''.
(3) Fiscal intermediaries.--Section 1816(b)(1) of such Act
(42 U.S.C. 1395h(b)(1)) is amended--
(A) in subparagraph (A), by striking ``and'' at the end;
(B) in subparagraph (B), by striking ``; and'' and
inserting a comma; and
(C) by adding at the end the following new subparagraph:
``(C) that such agency or organization is using no less
than 1 percent of its funding for education programs for
providers of services and providers of ambulance services
under section 1897.''.
(c) Effective Date.--The amendments made by this section
shall apply to fiscal years beginning after the date of the
enactment of this Act.
SEC. 302. INFORMATION REQUESTS.
(a) Clear, Concise, and Accurate Answers.--Fiscal
intermediaries and carriers shall do their utmost to provide
physicians, providers of services, and providers of ambulance
services with a clear, concise, and accurate answer regarding
billing and cost reporting questions under the medicare
program, and will give their true first and last names to
such physicians, providers of services, and providers of
ambulance services.
(b) Written Requests.--
(1) In general.--The Secretary shall establish a process
under which a physician, provider of services, or provider of
ambulance services may request, free of charge and in writing
from a fiscal intermediary or carrier, assistance in
addressing questions regarding coverage, billing,
documentation, coding, and cost reporting procedures under
the medicare program and then the fiscal intermediary or
carrier shall respond in writing within 30 business days with
the correct substantive or procedural answer.
(2) Use of written statement.--
(A) In general.--Subject to subparagraph (C), a written
statement under paragraph (1) may be used by the physician,
provider of services, or provider of ambulance services who
submitted the information request and submitted claims in
conformance with the answer of the carrier or fiscal
intermediary as proof against a future audit or overpayment
allegation under the medicare program.
(B) Extrapolation prohibition.--Subject to subparagraph
(C), no claim submitted under this section shall be subject
to extrapolation, if the claim adheres to the conditions set
forth in the information response.
(C) Limitation on application.--Subparagraphs (A) and (B)
shall not apply to cases of fraudulent billing.
(3) Safe harbor.--If a physician, provider of services, or
provider of ambulance services requests information under
this subsection, neither the fiscal intermediary, the
carrier, a contractor under section 1893 of the Social
Security Act (42 U.S.C. 1395ddd), nor any law enforcement
agency may begin an investigation or target such physician or
provider based on the request.
(c) Broad Policy Guidance by the Secretary.--The Secretary
shall develop a mechanism to address written questions
regarding medicare policy and regulations, which are
submitted by health care associations. The Secretary shall
issue such answers within 90 calendar days from the date of
the receipt of the question and shall make the responses
available to the public in an indexed, easily accessible
format.
(d) Notice of Changes in Policy.--Carriers and fiscal
intermediaries shall provide written, mailed notice within 30
calendar days to physicians, providers of services, and
providers of ambulance services of all policy or operational
changes to the medicare program. Physicians, providers of
services, and providers of ambulance services shall have not
less than 30 days to comply with such policy changes.
(e) Effective Date.--This section shall take effect 180
days after the date of the enactment of this Act.
TITLE IV--SUSTAINABLE GROWTH RATE REFORMS
SEC. 401. INCLUSION OF REGULATORY COSTS IN THE CALCULATION OF
THE SUSTAINABLE GROWTH RATE.
(a) In General.--Section 1848(f)(2) of the Social Security
Act (42 U.S.C. 1395w-4(f)(2)) is amended--
(1) by redesignating subparagraphs (A) through (D) as
clauses (i) through (iv), respectively;
(2) by striking ``Specification of growth rate.--The
sustainable growth rate'' and inserting ``Specification of
growth rate.--
``(A) In general.--The sustainable growth rate''; and
(3) by adding at the end the following new subparagraphs:
``(B) Inclusion of sgr regulatory costs.--The estimate
established under clause (iv) or any successor thereto shall
include--
``(i) the impact on costs for physicians' services
resulting from regulations implemented by the Secretary
during the year for which the sustainable growth rate is
estimated, including those regulations that may be
implemented during such year; and
``(ii) the costs described in subparagraph (C).
``(C) Inclusion of other regulatory costs.--The costs
described in this subparagraph are per procedure costs
incurred by physicians' practices in complying with
regulations promulgated by the Secretary, regardless of
whether such regulation affects the fee schedule established
under subsection (b)(1).
``(D) Inclusion of costs in regulatory impact analyses.--
With respect to any regulation promulgated that may impose a
regulatory cost described in subparagraph (B)(i) or (C) on a
physician, the Secretary shall include in the regulatory
impact analysis accompanying such regulation an estimate of
any such cost.
``(E) Inclusion of estimated cost on rural physicians.--In
promulgating regulations, the Secretary shall specifically
estimate the costs to rural physicians and physicians
practices in rural areas and the estimated number of hours
needed to comply with the regulation.''.
(b) Effective Date.--The amendments made by subsection (a)
shall apply with respect to any estimate made (or regulation
promulgated) by the Secretary of Health and Human Services on
or after 1 year after the date of enactment of this Act.
TITLE V--POLICY DEVELOPMENT REGARDING E&M GUIDELINES
SEC. 501. POLICY DEVELOPMENT REGARDING E&M DOCUMENTATION
GUIDELINES.
(a) In General.--HCFA may not implement any new evaluation
and management documentation guidelines (in this section
referred to as ``E&M guidelines'') under the medicare
program, unless HCFA--
(1) has provided for an assessment of the proposed
guidelines by organizations representing physicians;
(2) has established a plan that contains specific goals,
including a schedule, for improving use of such guidelines;
(3) has completed a minimum of 4 pilot projects consistent
with subsection (b) in at least 4 different HCFA regions
administered by 4 different carriers (to be specified by the
Secretary) to test such guidelines; and
(4) finds that the objectives described in subsection (c)
will be met in the implementation of such guidelines.
(b) Pilot Projects.--
(1) Length and consultation.--Each pilot project under this
subsection shall--
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(A) be of sufficient length to allow for preparatory
physician and carrier education, analysis, and use and
assessment of potential E&M guidelines; and
(B) be conducted, throughout the planning and operational
stages of the project, in consultation with organizations
representing physicians.
(2) Peer review pilot projects.--Of the pilot projects
conducted under this subsection--
(A) at least one shall focus on a peer review method by
physicians (not employed by a carrier) which evaluates
medical record information for claims submitted by physicians
identified as statistical outliers relative to definitions
published in the CPT book;
(B) at least one shall be conducted for services furnished
in a rural area (as defined in section 1886(d)(2)(D) of the
Social Security Act, 42 U.S.C. 1395ww(d)(2)(D)); and
(C) at least one shall be conducted in a setting where
physicians bill under physicians services in teaching
settings (described in section 415.150 of title 42, Code of
Federal Regulations).
(3) Banning of targeting of pilot project participants.--
Data collected under this subsection shall not be used as the
basis for overpayment demands or post-payment audits.
(4) Study of impact.--Each pilot project shall examine the
effect of the E&M guidelines on--
(A) different types of physician practices, including those
with few than 10 full-time employees (including physicians);
and
(B) the costs of physician compliance, including education,
implementation, auditing, and monitoring.
(c) Objectives for E&M Guidelines.--The objectives for E&M
guidelines specified in this subsection are as follows
(relative to the E&M guidelines and review policies in effect
as of the date of the enactment of this Act):
(1) Enhancing clinically relevant documentation needed to
code accurately and assess coding levels accurately.
(2) Decreasing the level of non-clinically pertinent and
burdensome documentation time and content in the record.
(3) Increased accuracy by carrier reviewers.
(4) Education of both physicians and reviewers.
(5) Promote appropriate use of E&M codes by physicians and
their staffs.
(6) The extent to which the tested E&M documentation
guidelines substantially adhere to the CPT coding definitions
and rules.
(d) Report on How Met Pilot Project Objectives.--HCFA shall
submit a report to the Committees on Energy and Commerce and
Ways and Means of the House of Representatives, the Committee
on Finance of the Senate, and the Practicing Physicians
Advisory Council, six months after the conclusion of the
pilot projects. Such report shall include the extent to which
the pilot projects met the objectives specified in
subsections (b)(4) and (c).
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