[Congressional Record Volume 161, Number 177 (Tuesday, December 8, 2015)]
[Senate]
[Pages S8495-S8498]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. CARDIN (for himself and Mr. Heller):
  S. 2364. A bill to permit occupational therapists to conduct the 
initial assessment visit under a Medicare home

[[Page S8496]]

health plan of care for certain rehabilitation cases; to the Committee 
on Finance.
  Mr. CARDIN. Mr. President, I rise in support of the Medicare Home 
Health Flexibility Act of 2015, which I am introducing today with my 
colleague Senator Heller. This bipartisan, no-cost legislation would 
allow occupational therapists to perform the initial home health 
assessment in cases in which occupational therapy is ordered by the 
physician, along with speech language pathology and/or physical therapy 
services, and skilled nursing care is not required, ensuring that 
Medicare beneficiaries receive timely access to essential home health 
therapy services.
  Occupational therapy is frequently ordered as part of a physician's 
plan of care for patients requiring home health services, and, under 
certain circumstances, an occupational therapist is allowed to perform 
the comprehensive assessment to determine a Medicare beneficiary's 
continuing need for home health therapy services. However, under 
current Medicare law, occupational therapists are not permitted to 
conduct the initial assessment for home health cases, even when 
occupational therapy is included in the physician's order and when the 
case is exclusively related to rehabilitation therapy.
  By permitting occupational therapists to perform initial home health 
assessments in limited circumstances, the Medicare Home Health 
Flexibility Act can help prevent delays in Medicare beneficiaries 
receiving essential home health therapy services, especially in areas 
where access to physical therapists and speech language pathologists 
may be limited. It is important to note that this legislation would 
apply only to rehabilitation therapy cases in which skilled nursing 
care is not required. Nurses would still be required to conduct the 
initial assessment for all home health cases in which skilled nursing 
care is ordered by the physician. Also, although the Medicare Home 
Health Flexibility Act would allow occupational therapists to conduct 
initial home health assessments, it would not alter the existing 
criteria for establishing eligibility for the Medicare home health 
benefit.
  I urge my colleagues to join me and Senator Heller in supporting the 
Medicare Home Health Flexibility Act, which will help ensure timely 
access to essential home health therapy services for Medicare 
beneficiaries.
  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. 2364

       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 Home Health 
     Flexibility Act of 2015''.

     SEC. 2. PERMITTING OCCUPATIONAL THERAPISTS TO CONDUCT THE 
                   INITIAL ASSESSMENT VISIT UNDER A MEDICARE HOME 
                   HEALTH PLAN OF CARE FOR CERTAIN REHABILITATION 
                   CASES.

       (a) In General.--Notwithstanding section 484.55(a)(2) of 
     title 42, Code of Federal Regulations, or any other provision 
     of law, an occupational therapist may conduct the initial 
     assessment visit for an individual who is eligible for home 
     health services under title XVIII of the Social Security Act 
     if the referral order by the physician--
       (1) does not include skilled nursing care;
       (2) includes occupation therapy; and
       (3) includes physical therapy or speech language pathology.
       (b) Rule of Construction.--Nothing in subsection (a) shall 
     be construed to provide for initial eligibility for coverage 
     of home health services under title XVIII of the Social 
     Security Act solely on the basis of a need for occupational 
     therapy.
                                 ______
                                 
      By Mr. HATCH:
  S. 2368. An original bill to amend title XVIII of the Social Security 
Act to improve the efficiency of the Medicare appeals process, and for 
other purposes; from the Committee on Finance; placed on the calendar.
  Mr. HATCH. Mr. President, today Senator Wyden and I have officially 
introduced the Audit and Appeal Fairness, Integrity, and Reforms in 
Medicare, or AFIRM, Act of 2015, a bipartisan bill developed earlier 
this year in the Senate Finance Committee. The AFIRM Act was actually 
ordered reported out of the committee in June, passing by voice vote 
with no recorded opposition.
  This legislation, comes mainly in response to the concerns many have 
expressed with regard to program integrity and the overall solvency of 
the Medicare Trust Fund.
  A recent report from the Government Accountability Office found that, 
in fiscal year 2014 alone, Medicare covered health services for 
approximately 54 million elderly and disabled beneficiaries at a cost 
of $603 billion in Federal funds. And, according to GAO, of that 
figure, approximately 10 percent of the funds were improperly paid.
  That is nearly $60 billion in improper payments--either errors or 
fraud--in a single fiscal year. That is an astronomical figure, and 
about 33 percent higher than the number we saw the year before.
  This unacceptably high level of improper Medicare payments has led to 
an increased number of audits to identify and recapture those funds. 
While officials at the Centers for Medicare & Medicaid Services have 
been reasonably successful in their mission to conduct audits on the 
more than one billion claims submitted to Medicare every year, they 
face an uphill battle in their efforts to recover improper payments.
  In 2014, for example, CMS recovery audit contractors recovered over 
$2.57 billion. While this may sound like a large number, that is less 
than of the 2014 Medicare improper payments estimate of $45.8 billion, 
hardly a figure anyone should be proud of.
  Coming on the heels of this massive loss in taxpayer funds and our 
Government's utter failure to retrieve them is an equally massive 
unintended consequence.
  Due to the increasing number of audits, there has been a predictable, 
yet dramatic, increase in the number of Medicare appeals. Currently, 
there are so many appeals being filed in response to these audits that 
the Office of Medicare Hearings and Appeals can't even docket them for 
20 to 24 weeks after they are filed.
  In fact, within the last month, the total backlog of Medicare appeals 
eclipsed 900,000. You heard that right: There are more than 900,000 
appeals currently pending at the Office of Medicare Hearings and 
Appeals.
  In fiscal year 2009, the majority of Medicare appeals were processed 
within 94 days. Now, 6 years later, it takes, on average, 547 days--or 
roughly a year and a half--to process an appeal. This is an incredibly 
frustrating amount of time, not only for physicians and other health 
care providers, but for Medicare beneficiaries as well.
  Think about that for a second. It takes, on average, a year and a 
half for Medicare beneficiaries--many of whom live on fixed incomes--
filing an appeal to find out whether their services will be covered in 
the end. It takes a year and a half for doctors--an increasing number 
of whom are already opting to not accept Medicare patients--to find out 
if they will be paid.
  Contributing to this problem is the fact that large portions of the 
initial payment determinations are reversed on appeal. The Department 
of Health and Human Services Office of Inspector General reported that, 
of the 41,000 appeals made to Administrative Law Judges, or ALJs, in 
fiscal year 2012, over 60 percent were partially or fully favorable to 
the defendant.
  Such a high rate of reversals raises questions about the quality of 
initial determinations and whether providers and beneficiaries are 
facing undue burdens up front.
  In order to protect beneficiaries, provide certainty for doctors, and 
take steps to at least partially shore up the Medicare Trust Fund, we 
need to address these issues now. That is why Senator Wyden and I 
introduced the AFIRM Act.
  If enacted, our bill will improve oversight of the Medicare audits 
and appeals process, effectively addressing the staggering Medicare 
appeals backlog. It will make the most fundamental changes to the 
appeals process since Medicare began. It will lay the groundwork for a 
more level playing field, reducing the burden on providers and 
suppliers, while giving auditors the tools necessary to better protect 
the Medicare Trust Fund.
  The AFIRM Act will address these issues in five ways.
  First, it will improve the audit programs by coordinating efforts 
between auditors and CMS to ensure that all

[[Page S8497]]

parties receive adequate training on current policy, increasing 
transparency in the audit process, and requiring that CMS create new 
incentives to improve auditor accuracy.
  Second, the bill will make reforms to the Medicare appeals process to 
address the appeals backlog without sacrificing quality. Part of this 
will be done by raising the amount in controversy for review by an ALJ 
to match the amount for review required by a District Court. For cases 
with lower costs, a new Medicare Magistrate program will be created to 
allow senior attorneys with expertise in Medicare law and policies to 
decide cases in the same way as ALJs. This will allow more cases to be 
heard more quickly, while still providing ALJs full focus on the more 
complex cases.
  Third, the bill will allow for the use of sampling and extrapolation 
of Medicare claims, with the appellant's consent, to expedite the 
appeals process.
  Fourth, the bill will establish voluntary alternate dispute 
resolution processes for multiple pending claims with similar issues to 
be settled as a unit, rather than as individual appeals. This will 
reduce administrative costs while still providing reasonable 
consideration to pending claims.
  Finally, the bill will also require that CMS create an independent 
Ombudsman for Medicare Reviews and Appeals to help resolve complaints 
made by appellants and those considering appeal. As with any federal 
program, continuing oversight and good leadership are required to have 
any measure of success.
  These are thoughtful, bipartisan improvements, agreed on by the 
entire Finance Committee that will address the appeals backlog while 
still allowing us to improve program integrity going forward. I believe 
it is the best approach we can take to continue our efforts to recover 
lost taxpayer funds without creating undue burdens for health care 
providers and suppliers.
  Oftentimes in Congress we find ourselves shying away from bipartisan 
compromises like this. Some may feel that they have more to gain, 
politically, if they thumb their noses at the other party. Or, 
inversely, they have something to lose if they actually agree on an 
issue with members on the other side.
  Let me clearly state, for the record, that we have neither the time, 
nor the money to play partisan games with this issue.
  The average amount of time for an appeal to get processed has gone up 
by more than 550 percent in just 6 years. You heard me correctly--that 
increase is just in the time it takes to get the appeal processed, not 
even ruled on. If this trend continues, and absent congressional 
action, I think we can assume that it will continue, imagine how much 
more strained, expensive, and ineffective the Medicare appeals system 
could become.
  Truly, there is no time better than now to actually do our job and 
stem this rising tide.
  Before I finish I want to thank Senator Wyden for working with me on 
this effort and for making this a truly bipartisan endeavor. I hope all 
of my colleagues--on both sides of the aisle--will support the AFIRM 
Act.
                                 ______
                                 
      By Mrs. FEINSTEIN (for herself and Mr. Burr):
  S. 2372. A bill to require reporting of terrorist activities and the 
unlawful distribution of information relating to explosives, and for 
other purposes; to the Committee on the Judiciary.


 =========================== NOTE =========================== 

  
  On page S8497, December 8, 2015, in the middle column, the 
following language appears: By Ms. CANTWELL (for herself, Mr. 
Grassley, Mr. Kirk, and Mr. Schumer): S. 2373. A bill to amend 
title XVIII of the Social Security Act to provide for Medicare 
coverage of certain lymphedema compression treatment items as 
items of durable medical equipment; to the Committee on Finance.
  
  The online Record has been corrected to read: By Mrs. FEINSTEIN 
(for herself and Mr. Burr): S. 2372. A bill to require reporting 
of terrorist activities and the unlawful distribution of 
information relating to explosives, and for other purposes; to the 
Committee on the Judiciary.


 ========================= END NOTE ========================= 

  Mrs. FEINSTEIN. Mr. President, today I rise to introduce the 
Requiring Reporting of Online Terrorist Activity Act, which would 
require technology companies to inform appropriate law enforcement 
authorities when they become aware of terrorist activity online.
  This provision is modeled after a similar requirement on technology 
companies under current law, which requires the companies to report 
instances of child pornography that they become aware of online.
  This legislation passed the Intelligence Committee earlier this year 
by a vote of 15-0 as part of our annual Intelligence Authorization Act, 
but it was later dropped, along with other provisions, to try to move 
the broader intelligence bill through the Senate.
  I have continued to believe that terrorists' use of the Internet is a 
problem that we need to address, and that the government can't do it 
alone. I have had conversations with the senior leaders and general 
counsels of major technology companies and unfortunately, I don't 
believe that they will report terrorist activity on their websites 
without a legal requirement to do so.
  So I am reintroducing this provision as a stand-alone bill, 
especially in the wake of recent terrorist attacks that highlight the 
problem of terrorist activity on social media.
  The investigation into the San Bernardino attack is ongoing, but so 
far, we have learned that sometime around the time of the attack, the 
female shooter, Tashfeen Malik, or an account connected to her, posted 
something on her Facebook page declaring allegiance to the Islamic 
State in Syria and the Levant or ``ISIL.''
  Facebook has publicly confirmed that the company identified and 
removed the account connected to Malik because praising a terrorist 
attack or declaring allegiance to leaders of ISIL would violate the 
company's standards for use.
  Facebook has said it is cooperating with law enforcement on the 
matter as part of the post-shooting investigation, but I would like to 
see technology companies notify law enforcement about terrorist 
activity they see online before an attack occurs.
  It is important to recognize how ISIL has used social media to 
reinvent terrorist recruiting and plotting over the past year and a 
half. I believe that now is the time for Congress to pass legislation 
to help law enforcement better respond to the threat.
  Unlike in the past when terrorists devised intricate plots years in 
advance, today, thousands of ISIL followers have flooded social media 
with a vast and persistent effort to find followers inside the United 
States, identify targets of opportunity, and instruct their new 
supporters how to conduct more small-scale, yet lethal terrorist 
attacks--all in a matter of days or weeks and all online without ever 
meeting or vetting their operative in person.
  This new trend shows that terrorism has adapted to the digital age, 
spreading first its propaganda and then its operational reach across 
the globe. Its lack of coordination or complexity makes it faster and 
harder to thwart than ever before, and the ubiquitous use of social 
media gives ISIL a wider direct audience than al-Qa'ida ever enjoyed.
  To respond, we must ensure that law enforcement is aware of the 
threat. To do this, Congress should pass this legislation immediately, 
which requires technology companies to inform the appropriate 
authorities when they become aware of terrorist activity.
  This type of requirement is not new. For years, companies have been 
required to notify law enforcement when they become aware of online 
child pornography. This bill would do essentially the same thing, but 
for cases of terrorism. It would not require companies to monitor their 
customers, nor would it chill free speech protected by the 
Constitution. Instead, it simply requires that clear acts of terrorist 
plotting or illegal activity associated with terrorism be conveyed to 
law enforcement.
  Most social media companies already devote considerable resources to 
remove content or suspend the accounts of individuals who post or 
transmit blatant terrorist-related content. But under the current 
system, there is no requirement that a company provide notice to law 
enforcement when, through the normal course of business, it becomes 
aware of images, posts, or other online terrorist activity. By closing 
that gap and requiring that companies notify law enforcement, there is 
a better chance the attempts by terrorist groups like ISIL to direct an 
individual inside the United States to conduct a violent act will be 
discovered and thwarted before it is too late.
  When technology companies see a picture of a child being exploited, 
they are required to inform law enforcement. Terrorist activity should 
be no different.
  I urge my colleagues to support this legislation.
                                 ______
                                 
      By Mr. MARKEY (for himself and Ms. Warren):

[[Page S8498]]

  S. 2374. A bill to amend the Defense Base Act to require death 
benefits to be paid to a deceased employee's designated beneficiary or 
next of kin in the case of death resulting from a war-risk hazard or 
act of terrorism occurring on or after September 11, 2001; to the 
Committee on Health, Education, Labor, and Pensions.
  Mr. MARKEY. Mr. President, in September 2012, an attack on the United 
States facilities in Benghazi, Libya, resulted in the death of Glen 
Anthony Doherty, a former Navy SEAL who grew up in Winchester, MA, and 
three others.
  Mr. Doherty was killed while defending the classified annex near the 
U.S. Consulate in Benghazi against a terrorist attack that also caused 
the deaths of U.S. Ambassador J. Christopher Stevens, former Navy SEAL 
and C.I.A. contractor Tyrone Woods, and U.S. State Department officer 
Sean Smith.
  Mr. Doherty was unmarried and had no dependents. It is my 
understanding that he activated his mandatory Defense Base Act 
insurance policy before deploying to Libya in 2012 believing this 
policy would pay benefits to his estate or next of kin in the event of 
his death.
  After his death and despite the Doherty family's extensive efforts, 
they have been unable to receive financial compensation from the 
Central Intelligence Agency or from private insurance providers. This 
issue has compounded the pain the family has endured from the loss of a 
beloved son and brother.
  No family in the CIA community should be left uncompensated if a 
family member falls in the line of duty.
  That is why I am today introducing the Glen Anthony Doherty Overseas 
Security Personnel Fairness Act, which was first introduced in the 
House of Representatives by Congressman Steven Lynch. This legislation 
will remove a significant omission in federal law that currently 
prohibits the families of overseas contractors who are killed in the 
line of duty from receiving full death benefits if the deceased 
employee is unmarried with no children or other dependents. The bill 
would amend the Defense Base Act of 1941 to ensure that full death 
benefits are extended to the families or designated beneficiaries of 
Federal contractors who have died in service to our country as a result 
of a war-risk hazard or an act of terrorism.
  Specifically, it would allow the payment of death benefits otherwise 
due a widow, widower, or surviving child of an individual employed at a 
military, air, or naval base outside of the United States who dies as a 
result of a war-risk hazard or act of terrorism occurring on or after 
September 11, 2001, when there is no person eligible for a death 
benefit under the Longshore and Harbor Workers' Compensation Act.
  The bill requires payment in such a case to a beneficiary designated 
by the deceased or the next of kin or the estate of the deceased under 
applicable state law if there is no designated beneficiary. The bill 
requires benefits to be paid from the Employees' Compensation Fund.
  More than merely a technical or administrative concern, this issue 
goes to the heart of the United States government's relationship with 
the families of those who are killed defending our country. I ask all 
Senators to support this important legislation for the families of 
those who have made the ultimate sacrifice for our Nation.

                          ____________________