[Congressional Record Volume 155, Number 78 (Wednesday, May 20, 2009)]
[Senate]
[Pages S5724-S5727]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. REID (for Mr. Rockefeller):
  S. 1110. A bill to amend title XVIII of the Social Security Act to 
create a sensible infrastructure for delivery system reform by renaming 
the Medicare Payment Advisory Commission, making the Commission an 
executive branch agency, and providing the Commission new resources and 
authority to implement Medicare payment policy; to the Committee on 
Finance.
  Mr. ROCKEFELLER. Mr. President, I rise today to introduce the 
Medicare Payment Advisory Commission MedPAC Reform Act, legislation to 
elevate MedPAC to an executive branch entity and give it the resources 
and authority to implement Medicare payment policies. It is a fact that 
the quality of U.S. health care is mediocre

[[Page S5725]]

and its costs are unsustainable. Nonetheless, a modern health care 
delivery system is within our reach and something that we can start to 
achieve this year. Payment reforms, particularly in Medicare, are the 
cornerstone for driving quality improvement and improving the 
efficiency of our health care system. However, Congress must adopt a 
mechanism to implement and maintain Medicare reimbursement policies 
that are based on the best evidence and driven by the right incentives. 
This is simply not the case today.
  Currently, Congress has the sole authority to change the cost curve 
for Medicare. Unfortunately, this process is riddled with political 
influence and is slowed by an inadequate structure to research, 
analyze, test, and implement successful delivery system reforms. Given 
the role of Medicare in determining market norms among all health care 
payers, both public and private, the federal government has an 
opportunity to realign our nation's health care system to drive quality 
improvement and greater efficiency.
  The federal government already has a well-respected, independent 
entity--the Medicare Payment Advisory Commission, MedPAC--that 
currently advises Congress on Medicare payment policies. MedPAC, 
established by the Balanced Budget Act of 1997 (P.L. 105-33), employs a 
number of mechanisms to inform Congress on issues affecting the 
Medicare program. Specifically, MedPAC analyzes provider reimbursement, 
beneficiary access to care, and quality of care; delivers this 
information to Congress through regular reports and recommendations; 
engages in public meetings to discuss policy issues and formulate its 
recommendations to the Congress; and seeks input on Medicare issues in 
non-public forums through frequent meetings with a wide variety of 
parties.
  Despite MedPAC's reputation for providing thoughtful, evidence-based 
recommendations to improve Medicare's payment policies, MedPAC has no 
power to implement its recommendations. That power rests solely with 
Congress. Unfortunately, Members of Congress face unyielding pressure 
from the health care industry to pick and choose which MedPAC 
recommendations they consider, despite the evidence. This routinely 
leads to the passage of laws that put the special interests of industry 
over the needs of patients.
  MedPAC has proven, through its objectivity and its open and 
deliberative process, that they have the appropriate expertise to 
change the cost curve for Medicare and strengthen it for the future. 
The Medicare Payment Advisory Commission Reform Act of 2009 helps to 
achieve this goal. Specifically, this legislation would restructure 
MedPAC as an independent executive branch entity, like the Federal 
Reserve Board. This would provide MedPAC the appropriate authority to 
implement its recommendations for Medicare provider reimbursement 
policies.
  In addition to extending the terms and requirements of the 
Commissioners to be full-time employees of the Commission, this 
legislation also establishes three new advisory councils to assist them 
in their decision-making--a Council of Health and Economic Advisors, a 
Consumer Advisory Council, and a Federal Health Advisory Council with 
representatives from the health care industry.
  Lastly, MedPAC's authority to analyze health services research is 
also enhanced in this legislation by providing them with additional 
resources and staff to bolster their current analytical role. Given the 
limitations of the current Medicare demonstration process, this 
legislation provides new authority and resources to MedPAC to design 
and evaluate new payment models through Medicare demonstrations.
  I strongly feel that establishing MedPAC as an independent executive 
branch agency--which can only happen through an act of Congress--is the 
type of bold step forward that can truly transform our delivery system. 
Congress has proven itself to be inefficient and inconsistent in making 
decisions about provider reimbursement under Medicare. If we want 
serious improvements in our health care delivery system, then Congress 
should leave the reimbursement rules to the independent health care 
experts. I urge my colleagues to join me in support of a policy that 
truly improves Medicare today and in the future.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 1110

       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 ``Medicare Payment Advisory 
     Commission (MedPAC) Reform Act of 2009''.

     SEC. 2. RENAMING AND REFORMING THE MEDICARE PAYMENT ADVISORY 
                   COMMISSION.

       (a) Amendment to Title.--
       (1) In general.--Section 1805 of the Social Security Act 
     (42 U.S.C. 1395b-6) is amended--
       (A) in the heading, by striking ``medicare payment advisory 
     commission'' and inserting ``medicare payment and access 
     commission''; and
       (B) in subsection (a), by striking ``Medicare Payment 
     Advisory Commission'' and inserting ``Medicare Payment and 
     Access Commission (or `MedPAC')''.
       (2) References.--Any reference to the Medicare Payment 
     Advisory Commission shall be deemed a reference to the 
     Medicare Payment and Access Commission.
       (b) Establishment as Executive Agency.--Section 1805 of the 
     Social Security Act (42 U.S.C. 1395b-6) is amended--
       (1) in the heading, by striking ``advisory'';
       (2) in subsection (a)--
       (A) by striking ``Advisory''; and
       (B) by striking ``agency of Congress'' and inserting 
     ``independent establishment (as defined in section 104 of 
     title 5, United States Code)'';
       (3) in subsection (c)--
       (A) in paragraph (1)--
       (i) by striking ``Appointment.--The Commission'' and 
     inserting ``Appointment.--
       ``(A) In general.--The Commission'';
       (ii) in subparagraph (A), as inserted by clause (i)--

       (I) by striking ``17'' and inserting ``11'';
       (II) by inserting ``the Secretary and the Administrator of 
     the Centers for Medicare & Medicaid Services, who shall each 
     serve as non-voting members of the Commission, and'' after 
     ``composed of''; and
       (III) by striking ``Comptroller General'' and inserting 
     ``President, by and with the advice and consent of the 
     Senate''; and

       (iii) by adding at the end the following new subparagraphs:
       ``(B) Limitation on number of terms served.--An individual 
     may not be appointed as a member of the Commission for more 
     than 2 consecutive terms.
       ``(C) Members currently appointed.--
       ``(i) In general.--Any individual serving as a member of 
     the Commission as of the date of enactment of the Medicare 
     Payment Advisory Commission (MedPAC) Reform Act of 2009 may 
     continue to serve as a member until the earlier of--

       ``(I) the remainder of the term for which the member was 
     appointed; or
       ``(II) April 30, 2010.

       ``(ii) Clarification regarding vacancies.--Any vacancy in 
     the Commission on or after such date of enactment shall be 
     filled as provided in accordance with subparagraph (A).''; 
     and
       (B) in paragraph (2), by striking subparagraph (D) and 
     inserting the following new subparagraph:
       ``(D) Additional qualifications.--In addition to the 
     qualifications described in the succeeding provisions of this 
     paragraph, the President shall consider the political balance 
     of the membership of the Commission and the needs of 
     individuals entitled to (or enrolled for) benefits under part 
     A or enrolled under part B who are entitled to medical 
     assistance under a State plan under title XIX.''.
       (C) in paragraph (3)--
       (i) by amending subparagraph (A) to read as follows:
       ``(A) In general.--The terms of members of the Commission 
     shall be for 6 years except that, of the members first 
     appointed--
       ``(i) four shall be appointed for terms of 5 years;
       ``(ii) four shall be appointed for terms of 3 years; and
       ``(iii) three shall be appointed for terms of 1 year.''; 
     and
       (ii) in subparagraph (B), in the third sentence, by 
     striking ``A vacancy'' and inserting ``Except as provided in 
     paragraph (1)(C), a vacancy'';
       (D) by amending paragraph (4) to read as follows:
       ``(4) Compensation.--Membership in the Commission shall be 
     a full-time position. A member of the Commission shall be 
     entitled to compensation at the rate payable for level IV of 
     the Executive Schedule under section 5316 of title 5, United 
     States Code.''.
       (E) by amending paragraph (5) to read as follows:
       ``(5) Chairman; vice chairman.--The President shall 
     designate a member of the Commission, at the time of 
     appointment of the member by and with the advice and consent 
     of the Senate, as Chairman and a member of the Commission, at 
     the time of appointment of the member by and with the advice 
     and consent of the Senate, as Vice Chairman, except that in 
     the case where the Chairman or the Vice Chairman is not able 
     to be present

[[Page S5726]]

     (including in the case of vacancy), a majority of the 
     Commission may designate another member for the period of 
     such absence.'';
       (4) in subsection (d), in the matter preceding paragraph 
     (1), by striking ``Subject to such review as the Comptroller 
     General deems necessary to assure the efficient 
     administration of the Commission, the Commission'' and 
     inserting ``The Commission'';
       (5) by amending subsection (f) to read as follows:
       ``(f) Authorization of Appropriations.--There are 
     authorized to be appropriated such sums as may be necessary 
     to carry out the provisions of this section. Sixty percent of 
     such appropriations shall be payable from the Federal 
     Hospital Insurance Trust Fund, and 40 percent of such 
     appropriation shall be payable from the Federal Supplementary 
     Medical Insurance Trust Fund.''; and
       (6) by adding at the end the following new subsection:
       ``(g) References.--Any reference to the Medicare Payment 
     Advisory Commission or MedPAC shall be deemed a reference to 
     the Medicare Payment and Access Commission.''.
       (c) Authority to Determine Payment Rates and Routine 
     Evaluation of Payment Rates Under the Medicare Program.--
       (1) In general.--Section 1805(b) of the Social Security Act 
     (42 U.S.C. 1395b-6(b)) is amended--
       (A) in paragraph (1)(B), by inserting ``and determine 
     payment rates for items and services furnished under this 
     title in accordance with paragraph (9)'' before the semicolon 
     at the end; and
       (B) by adding at the end the following new paragraphs:
       ``(9) Authority to determine payment rates under this 
     title.--
       ``(A) Determination of payment rates.--
       ``(i) In general.--Notwithstanding any other provision of 
     law, the Commission shall determine payment rates for items 
     and services furnished under this title. In determining such 
     payment rates, the Commission shall do so in a manner that is 
     consistent with the provisions of sections 1801 and 1802.
       ``(ii) Timeline for determinations with respect to payment 
     policies for physicians and hospitals.--The Commission shall 
     make a determination under this subparagraph with respect to 
     payment policies--

       ``(I) for physicians (as defined in section 1861(r)(1)), 
     not later than December 1 of each year (beginning with 2012); 
     and
       ``(II) for hospitals, not later than March 1 of each year 
     (beginning with 2013).

       ``(B) Implementation of payment rates.--
       ``(i) Authority of secretary.--Notwithstanding any other 
     provision of law, the Secretary shall promulgate regulations 
     to implement any payment rates determined by the Commission 
     under subparagraph (A).
       ``(ii) Payment rates and regulations currently in effect.--
     Any payment rate for items and services furnished under this 
     title as of the date of enactment of the Medicare Payment 
     Advisory Commission (MedPAC) Reform Act of 2009 or regulation 
     promulgated by the Secretary relating to such payments prior 
     to such date of enactment shall remain in effect until the 
     Secretary promulgates regulations under clause (ii) to 
     implement a payment rate determined by the Commission with 
     respect to the item or service.
       ``(C) Limitation on judicial review.--Any determination of 
     the Commission relating to payment rates for items and 
     services furnished under this title shall be a final agency 
     action of the Commission and shall not be subject to judicial 
     review.
       ``(D) Annual report.--Not later than March 15 of each year 
     (beginning with 2012), the Commission shall submit to 
     Congress a report on any payment rates determined under 
     subparagraph (A) during the preceding year, including the 
     performance of the Secretary in implementing such payment 
     rates by promulgating regulations under subparagraph (B).
       ``(10) Routine evaluation of payment rates.--The Commission 
     shall review the payment rate for each item and service 
     furnished under this title not less frequently than every 5 
     years in order to determine whether the Commission should 
     make a determination under paragraph (9) to update such 
     payment rate.''.
       (2) GAO study and annual report on determination and 
     implementation of payment rates.--
       (A) Study.--The Comptroller General of the United States 
     shall conduct a study on changes to payment policies under 
     the Medicare program under title XVIII of the Social Security 
     Act as a result of the amendments made by this subsection, 
     including an analysis of--
       (i) any determinations made by the Medicare Payment and 
     Access Commission under subparagraph (A) of section 
     1805(b)(9) of such Act, as added by paragraph (1), during the 
     preceding year;
       (ii) any regulations promulgated by the Secretary of Health 
     and Human Services under subparagraph (B) of such section 
     during the preceding year;
       (iii) the process for--

       (I) making such determinations (including the evidence to 
     support any such determination);
       (II) promulgating such regulations (including the capacity 
     of the Secretary of Health and Human Services to promulgate 
     such regulations); and

       (iv) the ability of the Centers for Medicare & Medicaid 
     Services to fulfill its responsibilities in carrying out such 
     regulations.
       (B) Report.--Not later than December 31 of each year 
     (beginning with 2012), the Comptroller General shall submit 
     to Congress a report containing the results of the study 
     conducted under subparagraph (A), together with 
     recommendations for such legislation and administrative 
     action as the Secretary determines appropriate.
       (d) Congressional Action.--Section 1805 of the Social 
     Security Act (42 U.S.C. 1395b-6), as amended by subsection 
     (b), is amended--
       (1) by redesignating subsections (f) and (g), respectively, 
     as subsections (g) and (h); and
       (2) by inserting after subsection (e) the following new 
     subsection:
       ``(f) Congressional Action.--
       ``(1) In general.--Notwithstanding any other provision of 
     law, it shall only be in order in the Senate or the House of 
     Representatives to consider any measure that would overrule a 
     determination of the Commission with respect to payments for 
     items and services furnished under this title if \3/5\ of the 
     Members, duly chosen and sworn, of the Senate or the House of 
     Representatives agree to such consideration.
       ``(2) Rules of the senate and house of representatives.--
     This subsection is enacted by Congress--
       ``(A) as an exercise of the rulemaking power of the Senate 
     and House of Representatives, respectively, and is deemed to 
     be part of the rules of each House, respectively, but 
     applicable only with respect to the procedure to be followed 
     in that House in the case of a measure described in paragraph 
     (1), and it supersedes other rules only to the extent that it 
     is inconsistent with such rules; and
       ``(B) with full recognition of the constitutional right of 
     either House to change the rules (so far as they relate to 
     the procedure of that House) at any time, in the same manner, 
     and to the same extent as in the case of any other rule of 
     that House.''.
       (e) Research, Information Access, and Demonstration 
     Projects.--Section 1805(e) of the Social Security Act (42 
     U.S.C. 1395b-6(e)) is amended by adding at the end the 
     following new paragraphs:
       ``(5) Authority to inform research priorities for data 
     collection.--The Commission may advise the Secretary (through 
     the Director of the Agency for Healthcare Research and 
     Quality and the Director of the National Institutes of 
     Health) on priorities for health services research, 
     particularly as such priorities pertain to necessary changes 
     and issues regarding payment reforms under this title.
       ``(6) Expanded authority to access federal data and 
     reports.--In addition to data obtained under paragraph (1), 
     the Commission shall have priority access to all raw data and 
     research conducted or funded by the Federal government, 
     including data and research produced by the Centers for 
     Medicare & Medicaid Services, the National Institutes of 
     Health, and the Agency for Healthcare Research and Quality.
       ``(7) Electronic access.--The National Director for Health 
     Information Technology, in coordination with the Secretary, 
     the Administrator of the Centers for Medicare & Medicaid 
     Services, and the Commission, shall establish a direct 
     electronic link for raw data, including claims data under 
     this title, to be accessed by the Commission for the purposes 
     of evaluating and determining recommendations under this 
     title, in accordance with applicable privacy laws and data 
     use agreements.
       ``(8) Access to biannual reports.--Not less frequently than 
     on a biannual basis, the National Institutes of Health and 
     the Agency for Healthcare Research and Quality shall submit 
     to the Commission a report containing information on any 
     research conducted by the National Institutes of Health and 
     the Agency for Healthcare Research and Quality, respectively, 
     which has relevance for the determinations and 
     recommendations being considered by the Commission. Such 
     information shall be provided to the Commission in electronic 
     form.
       ``(9) Revisions to process for conduct of demonstration 
     projects relating to payments under this title.--Effective 
     beginning January 1, 2011, the Commission shall have sole 
     authority to design and evaluate demonstration projects 
     relating to payments under this title which are authorized by 
     section 402 of the Social Security Amendments of 1967 or 
     under a waiver under section 1115. The Secretary shall 
     maintain all responsibility for implementing such 
     demonstration projects, including for implementing the 
     process through which providers are reimbursed for items and 
     services furnished under the demonstration projects. Nothing 
     in this paragraph shall affect the authority of the Secretary 
     with respect to demonstration projects under this title not 
     relating to such payments.''.
       (f) Additional Resources to Carry Out Duties.--
       (1) In general.--Section 1805(d) of the Social Security Act 
     (42 U.S.C. 1395b-6(d)) is amended--
       (A) in paragraph (1), by inserting ``(including an 
     attorney)'' after ``such other personnel''; and
       (B) in paragraph (5), by striking ``and'' at the end;
       (C) in paragraph (6), by striking the period at the end and 
     inserting ``; and''; and
       (D) by adding at the end the following new paragraph:
       ``(7) establish a public affairs office.''.
       (2) Office of the ombudsman.--Section 1805(e) of the Social 
     Security Act (42 U.S.C.

[[Page S5727]]

     1395b-6(e)), as amended by subsection (e), is amended by 
     adding at the end the following new paragraph:
       ``(10) Office of the ombudsman.--
       ``(A) In general.--The Commission shall establish an office 
     of the ombudsman to handle complaints regarding the 
     implementation of regulations under subsection (a)(9)(B).
       ``(B) Duties.--The office of the ombudsman shall--
       ``(i) act as a liaison between the Commission and any 
     entity or individual affected by the implementation of such a 
     regulation; and
       ``(ii) ensure that the Commission has established 
     safeguards--

       ``(I) to encourage such entities and individuals to submit 
     complaints to the office of the ombudsman; and
       ``(II) to protect the confidentiality of any entity or 
     individual who submits such a complaint.''.

       (g) Use of Funding.--Section 1805(g) of the Social Security 
     Act (42 U.S.C. 1395b-6(g)), as amended by subsection (b) and 
     redesignated by subsection (d), is amended by adding at the 
     end the following new sentence: ``Out of amounts appropriated 
     under the preceding sentence, the Commission may use not more 
     than $500,000,000 each fiscal year to test new methods of 
     reimbursement under this title.''.
       (h) MACPAC Technical Amendments.--Section 1900(b) of the 
     Social Security Act (42 U.S.C. 1396) is amended--
       (1) in paragraph (1)(D), by striking ``June 1'' and 
     inserting ``June 15''; and
       (2) by adding at the end the following:
       ``(10) Consultation with medpac.--MACPAC shall regularly 
     consult with the Medicare Payment and Access Commission (in 
     this paragraph referred to as `MedPAC') established under 
     section 1805 in carrying out its duties under this 
     section.''.
       (i) Lobbying Cooling-Off Period for Members of the Medicare 
     Payment Advisory Commission.--Section 207(c) of title 18, 
     United States Code, is amended by inserting at the end the 
     following:
       ``(3) Members of the medicare payment advisory 
     commission.--
       ``(A) In general.--Paragraph (1) shall apply to a member of 
     the Medicare Payment Advisory Commission who was appointed to 
     such Commission as of the day before the date of enactment of 
     the Medicare Payment Advisory Commission (MedPAC) Reform Act 
     of 2009.
       ``(B) Agencies and congress.--For purposes of paragraph 
     (1), the agency in which the individual described in 
     subparagraph (A) served shall be considered to be the 
     Medicare Payment and Access Commission established under 
     section 1805 of the Social Security Act, the Department of 
     Health and Human Services, and the relevant committees of 
     jurisdiction of Congress.''.

     SEC. 3. ESTABLISHMENT OF COUNCIL OF HEALTH AND ECONOMIC 
                   ADVISERS, CONSUMER ADVISORY COUNCIL, AND 
                   FEDERAL HEALTH ADVISORY COUNCIL.

       Section 1805(b) of the Social Security Act (42 U.S.C. 
     1395b-6(b)), as amended by section 2(c), is amended by adding 
     at the end the following new paragraph:
       ``(11) Council of health and economic advisers, consumer 
     advisory council, and federal health advisory council.--
       ``(A) Council of health and economic advisers.--
       ``(i) In general.--The Commission shall establish a council 
     of health and economic advisers to advise the Commission on 
     its development, analyses, and implementation of payment 
     policies under this title.
       ``(ii) Membership.--

       ``(I) In general.--The council of health and economic 
     advisers shall be composed of acknowledged experts in health 
     care and economics selected by the Commission.
       ``(II) Initial inclusion of former members of medicare 
     payment advisory commission.--The members initially selected 
     for the council of health and economic advisers under 
     subclause (I) shall include those individuals who were 
     members of the Medicare Payment Advisory Commission as of the 
     day before the date of enactment of the Medicare Payment 
     Advisory Commission (MedPAC) Reform Act of 2009.

       ``(B) Consumer advisory council.--
       ``(i) In general.--There is established a consumer advisory 
     council to advise the Commission on the impact of payment 
     policies under this title on consumers.
       ``(ii) Membership.--

       ``(I) Number and appointment.--The consumer advisory 
     council shall be composed of 10 consumer representatives 
     appointed by the Comptroller General of the United States, 1 
     from among each of the 10 regions established by the 
     Secretary as of the date of enactment of the Medicare Payment 
     Advisory Commission (MedPAC) Reform Act of 2009.
       ``(II) Qualifications.--The membership of the council shall 
     represent the interests of consumers and particular 
     communities.

       ``(iii) Duties.--The consumer advisory council shall, 
     subject to the call of the Commission, meet not less 
     frequently than 2 times each year in the District of 
     Columbia.
       ``(iv) Open meetings.--Meetings of the consumer advisory 
     council shall be open to the public.
       ``(v) Election of officers.--Members of the consumer 
     advisory council shall elect their own officers.
       ``(C) Federal health advisory council.--
       ``(i) In general.--There is established a Federal health 
     advisory council to consult with and provide advice to the 
     Commission on all matters within the jurisdiction of the 
     Commission.
       ``(ii) Membership.--The Federal health advisory council 
     shall be composed of 10 representatives from the health care 
     industry appointed by the Comptroller General of the United 
     States, 1 from among each of the 10 regions established by 
     the Secretary as of the date of enactment of the Medicare 
     Payment Advisory Commission (MedPAC) Reform Act of 2009.
       ``(iii) Terms.--

       ``(I) In general.--The terms of members of the Federal 
     health advisory council shall be for 1 year.
       ``(II) Limitation on number of terms served.--An individual 
     may not be appointed as a member of the Federal health 
     advisory council for more than 3 terms.

       ``(iv) Duties.--The Federal health advisory council shall, 
     subject to the call of the Commission, meet not less 
     frequently than 2 times each year in the District of 
     Columbia.
       ``(v) Open meetings.--Meetings of the Federal health 
     advisory council shall be open to the public.
       ``(vi) Election of officers.--Members of the Federal health 
     advisory council shall elect their own officers.
       ``(D) Limitation on funding.--Out of amounts appropriated 
     under subsection (g), the Commission may use not more than 
     $300,000 each fiscal year to carry out this paragraph.''.
                                 ______