[Congressional Record Volume 148, Number 35 (Friday, March 22, 2002)]
[Senate]
[Pages S2326-S2328]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. BINGAMAN (for himself, Mr. Bond, and Mr. Inouye):
  S. 2067. A bill to amend title XVIII of the Social Security Act to 
enhance the access of Medicare beneficiaries who live in medically 
underserved areas to critical primary and preventive health care 
benefits to improve the Medicare+Choice program, and for other 
purposes; to the Committee on Finance.
  Mr. BINGAMAN. Mr. President, the legislation I am introducing today 
with Senators Bond and Inouye entitled the ``Medicare Safety Net Access 
Act of 2002,'' or ``Access 2002,'' would improve services for Medicare 
beneficiaries and protect a critical mission of health centers, to 
provide access to care to underserved rural, frontier, and inner-city 
communities.
  Community health centers, CHC's, provide primary and preventive care 
to more than 700,000 medically underserved Medicare beneficiaries, 
including over 20,000 in New Mexico. Health centers also provide 
critical support services that help seniors more easily access care. In 
many cases, the local health center may be the only source of primary 
and preventive care for Medicare beneficiaries in a community.
  While hundreds of thousands of Medicare beneficiaries turn to health 
centers for care, many centers struggle to provide services to these 
patients. Current Medicare regulations cause health centers significant 
financial losses that have a direct impact on access to care. In 
addition, the Medicare federally qualified health center, FQHC, benefit 
has not been modernized to include many of the new preventive and other 
services added to the Medicare package by Congress in recent years 
again undermining the critical role that health centers play in 
providing access to care.
  To address these and other issues, Senators Bond, Inouye, and I are 
introducing the ``Medicare Safety Net Access Act of 2002'', also known 
as ``Access 2002.'' The legislation would address the following 
problems.
  With respect to payment issues, the bill ensures that Medicare covers 
the cost of providing care to Medicare beneficiaries at CHC's. Congress 
provides more than $1.3 billion in section 330 funding to CHC's to 
provide care to

[[Page S2327]]

the uninsured. When Medicare fails to cover the costs of care for 
Medicare beneficiaries, CHC's must make up for the shortfall through a 
variety of mechanisms including drawing from the section 330 grants, 
which are supposed to be dedicated for care to the uninsured.
  Medicare has historically provided such cost-based reimbursement to 
other safety net providers, such as certain rural hospitals, cancer 
hospitals, and children's hospitals. Moreover, Congress passed 
legislation in 2000 to protect health centers from the same problem in 
Medicaid.
  The legislation assures that CHC's are afforded the same protections 
through the Medicare program so that Federal funding for the uninsured 
is not redirected to pay for shortfalls from Medicare patients. It does 
so by eliminating the per visit payment cap on health centers' Medicare 
payments. In the Medicare statute, Congress clearly intended to cover 
the cost of a health centers' Medicare patients, but the Centers for 
Medicare and Medicaid Services, CMS, applies an arbitrary ``payment 
cap'' that is not in the Federal statute. For many health centers, the 
cap has significantly reduced their Medicare payments, particularly for 
patients that have chronic illnesses, and forced them to reduce care 
they would have otherwise provided for their uninsured patients. Our 
bipartisan legislation prevents the imposition of the Medicare payment 
cap for health centers, and again, mirrors cost-based reimbursement 
that a number of other safety-net providers receive through Medicare.

  The bill also extends payment protections to Medicare+Choice. This is 
achieved by establishing a supplemental or ``wrap-around'' payment much 
like the one that currently exists in the Medicaid program for FQHC's 
contracting with managed care organizations. As this has worked so well 
in the Medicaid program, Congress should also enact a ``wrap-around'' 
payment in the Medicare+Choice program to ensure CHC's are having their 
reasonable costs appropriately covered.
  In addition, the legislation eliminates regulatory hurdles that 
impair health centers' ability to provide preventive ambulatory 
services to Medicare patients. While CHC's provide primary care 
services to their patients, Medicare does not cover anything other than 
the most basic services provided at CHC's. Such services that health 
centers may provide that Medicare does not pay on a cost basis, 
include: mammograms, nutrition services, or laboratory or x-ray 
services. Some of these services have been recently been added by 
Congress but the Medicare FQHC benefit has not been updated to reflect 
those changes. This legislation would expand the services that health 
centers could provide to medically underserved Medicare beneficiaries.
  Furthermore, the bill ensures the availability of these services to 
those enrolling in Medicare managed care but requiring Medicare+Choice 
plans to contract with a sufficient number of FQHC's to make FQHC 
services accessible to plan enrollees.
  And finally, the ``Medicare Safety Net Access Act of 2002'' 
establishes a safe harbor in the federal anti-kickback statute for 
arrangements between health centers and other providers that improve 
access to services for low-income patients in underserved communities. 
Health centers and other providers often participate in arrangements 
designed to expand their ability to provide care in the poor 
communities they serve. However, these arrangements can potentially 
expose health centers under the federal anti-kickback laws.
  For nine years, a proposed ``safe harbor'' has been pending before 
the U.S. Department of Health and Human Services' Office of the 
Inspector General, HHS IOG, that would allow health centers to contract 
with other providers to improve health services to low-income patients 
without fear of being in violation of the anti-kickback law. To qualify 
under the proposed safe harbor, the arrangement would have to meet 
strict criteria to protect against fraud and abuse, including the 
demonstration of a community benefit through the savings of grant 
dollars intended for care for the uninsured or an increase in the 
availability of services to a medically underserved community. There 
are additional requirements, such as assurances that the arrangement to 
not limit a patient's freedom of choice, in addition to any others that 
the IOG deems are needed as long as they are consistent with 
congressional intent.
  Community health centers enjoy strong bipartisan support in Congress 
because they are cost-effective providers of services that keep 
patients healthy and out of costly specialty and emergency settings. As 
more people prepare to enter the Medicare program, it is vital that 
beneficiaries in rural, frontier, and inner-city areas have access to 
the full range of Medicare benefits. Health centers are the vehicle to 
make that happen. I urge passage of this legislation.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordererd to be printed in the 
Record, as follows:

                                S. 2067

       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 
     Safety Net Access Act of 2002''.
       (b) Table of Contents.--The table of contents of this Act 
     is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Supplemental reimbursement for Federally qualified health 
              centers participating in medicare managed care.
Sec. 3. Revision of Federally qualified health center payment limits.
Sec. 4. Coverage of additional Federally qualified health center 
              services.
Sec. 5. Providing safe harbor for certain collaborative efforts that 
              benefit medically underserved populations.

     SEC. 2. SUPPLEMENTAL REIMBURSEMENT FOR FEDERALLY QUALIFIED 
                   HEALTH CENTERS PARTICIPATING IN MEDICARE 
                   MANAGED CARE.

       (a) Supplemental Reimbursement.--
       (1) In general.--Section 1833(a)(3) of the Social Security 
     Act (42 U.S.C. 1395l(a)(3)) is amended to read as follows:
       ``(3) in the case of services described in section 
     1832(a)(2)(D)--
       ``(A) except as provided in subparagraph (B), the costs 
     which are reasonable and related to the cost of furnishing 
     such services or which are based on such other tests of 
     reasonableness as the Secretary may prescribe in regulations, 
     including those authorized under section 1861(v)(1)(A), less 
     the amount a provider may charge as described in clause (ii) 
     of section 1866(a)(2)(A), but in no case may the payment for 
     such services (other than for items and services described in 
     section 1861(s)(10)(A)) exceed 80 percent of such costs; or
       ``(B) with respect to the services described in clause (ii) 
     of section 1832(a)(2)(D) that are furnished to an individual 
     enrolled with a Medicare+Choice organization under part C 
     pursuant to a written agreement described in section 1853(j), 
     the amount by which--
       ``(i) the amount of payment that would have otherwise been 
     provided under subparagraph (A) (calculated as if `100 
     percent' were substituted for `80 percent' in such 
     subparagraph) for such services if the individual had not 
     been so enrolled; exceeds
       ``(ii) the amount of the payments received under such 
     written agreement for such services (not including any 
     financial incentives provided for in such agreement such as 
     risk pool payments, bonuses, or withholds),

     less the amount the Federally qualified health center may 
     charge as described in section 1857(e)(3)(C);''.
       (b) Continuation of Medicare+Choice Monthly Payments.--
       (1) In general.--Section 1853 of the Social Security Act 
     (42 U.S.C. 1395w-23) is amended by adding at the end the 
     following new subsection:
       ``(j) Special Payment Rule for Federally Qualified Health 
     Center Services.--If an individual who is enrolled with a 
     Medicare+Choice organization under this part receives a 
     service from a Federally qualified health center that has a 
     written agreement with such organization for providing such a 
     service (including any agreement required under section 
     1857(e)(3))--
       ``(1) the Secretary shall pay the amount determined under 
     section 1833(a)(3)(B) directly to the Federally qualified 
     health center not less frequently than quarterly; and
       ``(2) the Secretary shall not reduce the amount of the 
     monthly payments to the Medicare+Choice organization made 
     under section 1853(a) as a result of the application of 
     paragraph (1).''.
       (2) Conforming amendments.--
       (A) Paragraphs (1) and (2) of section 1851(i) of the Social 
     Security Act (42 U.S.C. 1395w-21(i)(1)) are each amended by 
     inserting ``1853(j),'' after ``1853(h),''.
       (B) Section 1853(c)(5) is amended by striking ``subsections 
     (a)(3)(C)(iii) and (i)'' and inserting ``subsections 
     (a)(3)(C)(iii), (i), and (j)(1)''.
       (c) Additional Medicare+Choice Contract Requirements.--
     Section 1857(e) of the Social Security Act (42 U.S.C. 1395w-
     27(e)) is

[[Page S2328]]

     amended by adding at the end the following new paragraph:
       ``(3) Agreements with federally qualified health centers.--
       ``(A) Ensuring equal access to services of fqhcs.--A 
     contract under this part shall require the Medicare+Choice 
     organization to enter into (and to demonstrate to the 
     Secretary that it has entered into) a sufficient number of 
     written agreements with Federally qualified health centers 
     providing Federally qualified health center services for 
     which payment may be made under this title in the service 
     area of each Medicare+Choice plan offered by such 
     organization so that such services are reasonably available 
     to individuals enrolled in the plan.
       ``(B) Ensuring equal payment levels and amounts.--A 
     contract under this part shall require the Medicare+Choice 
     organization to provide a level and amount of payment to each 
     Federally qualified health center for services provided by 
     such health center that are covered under the written 
     agreement described in subparagraph (A) that is not less than 
     the level and amount of payment that the organization would 
     make for such services if the services had been furnished by 
     a provider of services that was not a Federally qualified 
     health center.
       ``(C) Cost-sharing.--Under the written agreement described 
     in subparagraph (A), a Federally qualified health center must 
     accept the Medicare+Choice contract price plus the Federal 
     payment as payment in full for services covered by the 
     contract, except that such a health center may collect any 
     amount of cost-sharing permitted under the contract under 
     this part, so long as the amounts of any deductible, 
     coinsurance, or copayment comply with the requirements under 
     section 1854(e) and do not result in a total payment to the 
     center in excess of the amount determined under section 
     1833(a)(3)(A) (calculated as if `100 percent' were 
     substituted for `80 percent' in such section).''.
       (d) Safe Harbor From Antikickback Prohibition.--Section 
     1128B(b)(3) of the Social Security Act (42 U.S.C. 1320a-
     7b(b)(3)) is amended--
       (1) in subparagraph (E), by striking ``and'' after the 
     semicolon at the end;
       (2) in subparagraph (F), by striking the period at the end 
     and inserting ``; and''; and
       (3) by adding at the end the following new subparagraph:
       ``(G) any remuneration between a Federally qualified health 
     center (or an entity controlled by such a health center) and 
     a Medicare+Choice organization pursuant to the written 
     agreement described in section 1853(j).''.
       (e) Effective Date.--The amendments made by this section 
     shall apply to services provided on or after January 1, 2003, 
     and contract years beginning on or after such date.

     SEC. 3. REVISION OF FEDERALLY QUALIFIED HEALTH CENTER PAYMENT 
                   LIMITS.

       (a) Per Visit Payment Requirements for FQHCs.--Section 
     1833(a)(3)(A) of the Social Security Act (42 U.S.C. 
     1395l(a)(3)(A)), as amended by section 2(a), is amended by 
     adding ``(which regulations may not limit the per visit 
     payment amount, or a component of such amount, for services 
     described in section 1832(a)(2)(D)(ii))'' after ``the 
     Secretary may prescribe in regulations''.
       (b) Effective Date.--The amendment made by subsection (a) 
     shall apply to services provided on or after January 1, 2003.

     SEC. 4. COVERAGE OF ADDITIONAL FEDERALLY QUALIFIED HEALTH 
                   CENTER SERVICES.

       (a) Coverage for FQHC Ambulatory Services.--Section 
     1861(aa)(3) of the Social Security Act (42 U.S.C. 
     1395x(aa)(3)) is amended to read as follows:
       ``(3) The term `Federally qualified health center services' 
     means--
       ``(A) services of the type described in subparagraphs (A) 
     through (C) of paragraph (1), and such other services 
     furnished by a Federally qualified health center for which 
     payment may otherwise be made under this title if such 
     services were furnished by a health care provider or health 
     care professional other than a Federally qualified health 
     center; and
       ``(B) preventive primary health services that a center is 
     required to provide under section 330 of the Public Health 
     Service Act,

     when furnished to an individual as a patient of a Federally 
     qualified health center.''.
       (b) Offsite FQHC Services.--
       (1) Patients of hospitals and critical access hospitals.--
     Section 1862(a)(14) of the Social Security Act (42 U.S.C. 
     1395y(a)) is amended by inserting ``Federally qualified 
     health center services,'' after ``qualified psychologist 
     services,''.
       (2) Exclusion of federally qualified health center services 
     from the pps for skilled nursing facilities.--Section 1888(e) 
     of the Social Security Act (42 U.S.C. 1395yy(e)) is amended--
       (A) in paragraph (2)(A)(i)(II), by striking ``clauses (ii) 
     and (iii)'' and inserting ``clauses (ii) through (iv)''; and
       (B) by adding at the end of paragraph (2)(A) the following 
     new clause:
       ``(iv) Exclusion of federally qualified health center 
     services.--Services described in this clause are Federally 
     qualified health center services (as defined in section 
     1861(aa)(3)).''.
       (c) Technical Corrections.--
       (1) Section 1861(aa)(1)(B) of the Social Security Act (42 
     U.S.C. 1395x(aa)(1)(B)) is amended by striking ``subsection 
     (hh)(1)),,'' and inserting ``subsection (hh)(1)),''.
       (2) Clauses (i) and (ii)(II) of section 1861(aa)(4)(A) of 
     the Social Security Act (42 U.S.C. 1395x(aa)(4)(A)) are each 
     amended by striking ``(other than subsection (h))''.
       (d) Effective Dates.--The amendments made--
       (1) by subsections (a) and (b) shall apply to services 
     furnished on or after January 1, 2003; and
       (2) by subsection (c) shall take effect on the date of 
     enactment of this Act.

     SEC. 5. PROVIDING SAFE HARBOR FOR CERTAIN COLLABORATIVE 
                   EFFORTS THAT BENEFIT MEDICALLY UNDERSERVED 
                   POPULATIONS.

       (a) In General.--Section 1128B(b)(3) of the Social Security 
     Act (42 U.S.C. 1320a-7(b)(3)), as amended by section 2(d), is 
     amended--
       (1) in subparagraph (F), by striking ``and'' after the 
     semicolon at the end;
       (2) in subparagraph (G), by striking the period at the end 
     and inserting ``; and''; and
       (3) by adding at the end the following new subparagraph:
       ``(H) any remuneration between a public or nonprofit 
     private health center entity described under clauses (i) and 
     (ii) of section 1905(l)(2)(B) and any individual or entity 
     providing goods, items, services, donations or loans, or a 
     combination thereof, to such health center entity pursuant to 
     a contract, lease, grant, loan, or other agreement, if such 
     agreement produces a community benefit that will be used by 
     the health center entity to maintain or increase the 
     availability or accessibility, or enhance the quality, of 
     services provided to a medically underserved population 
     served by the health center entity.''.
       (b) Rulemaking for Exception for Health Center Entity 
     Arrangements.--
       (1) Establishment.--
       (A) In general.--The Secretary of Health and Human Services 
     (in this subsection referred to as the ``Secretary'') shall 
     establish, on an expedited basis, standards relating to the 
     exception for health center entity arrangements to the 
     antikickback penalties described in section 1128B(b)(3)(F) of 
     the Social Security Act, as added by subsection (a).
       (B) Factors to consider.--In establishing standards 
     relating to the exception for health center entity 
     arrangements under subparagraph (A), the Secretary--
       (i) shall extend the exception where the arrangement 
     between the health center entity and the other party--

       (I) results in savings of Federal grant funds or increased 
     revenues to the health center entity;
       (II) does not limit or restrict a patient's freedom of 
     choice; and
       (III) does not interfere with a health care professional's 
     independent medical judgment regarding medically appropriate 
     treatment; and

       (ii) may include other standards and criteria that are 
     consistent with the intent of Congress in enacting the 
     exception established under this subsection.
       (2) Interim final effect.--No later than 60 days after the 
     date of enactment of this Act, the Secretary shall publish a 
     rule in the Federal Register consistent with the factors 
     under paragraph (1)(B). Such rule shall be effective and 
     final immediately on an interim basis, subject to change and 
     revision after public notice and opportunity (for a period of 
     not more than 60 days) for public comment, provided that any 
     change or revision shall be consistent with this subsection.
                                 ______