[Senate Report 114-177]
[From the U.S. Government Publishing Office]
Calendar No. 317
114th Congress } { Report
SENATE
1st Session } { 114-177
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AUDIT & APPEALS FAIRNESS, INTEGRITY, AND REFORMS IN MEDICARE ACT OF
2015
_______
December 8, 2015.--Ordered to be printed
_______
Mr. Hatch, from the Committee on Finance,
submitted the following
R E P O R T
[To accompany S. 2368]
[Including cost estimate of the Congressional Budget Office]
The Committee on Finance, having considered an original
bill (S. 2368) to amend title XVIII of the Social Security Act
to improve the efficiency of the Medicare appeals process, and
for other purposes, having considered the same, reports
favorably thereon without amendment, and recommends that the
bill do pass.
CONTENTS
Page
I. LEGISLATIVE BACKGROUND...........................................2
II. EXPLANATION OF THE BILL..........................................5
A. SECTIONS 1-9, IMPROVEMENTS TO THE APPEALS PROCESS... 5
B. SECTION 10, REVIEW PROGRAM IMPROVEMENTS............. 11
C. SECTION 11, CREATION OF MEDICARE PROVIDER AND
SUPPLIER OMBUDSMAN FOR REVIEWS AND APPEALS......... 14
D. SECTION 12, LIMITING THE AUDIT AND RECOVERY PERIOD
FOR PATIENT STATUS REVIEWS......................... 15
E. SECTION 13, INCENTIVES AND DISINCENTIVES FOR
MEDICARE CONTRACTORS, PROVIDERS, AND SUPPLIERS..... 17
III. BUDGET EFFECTS OF THE BILL......................................18
A. COMMITTEE ESTIMATES................................. 18
B. BUDGET AUTHORITY.................................... 20
C. CONSULTATION WITH CONGRESSIONAL BUDGET OFFICE....... 20
IV. VOTES OF THE COMMITTEE..........................................20
V. REGULATORY IMPACT AND OTHER MATTERS.............................21
A. REGULATORY IMPACT................................... 21
B. UNFUNDED MANDATES STATEMENT......................... 21
VI. CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED...........21
I. Legislative Background
The Committee on Finance, having considered an original
bill, Audit & Appeals Fairness, Integrity, and Reforms in
Medicare Act of 2015, to amend title XVIII of the Social
Security Act intended to increase coordination and oversight of
Medicare claims review contractors, implement new strategies to
address the growing number of review contractor determination
appeals, reduce review burdens on providers, and give review
contractors the tools necessary to better protect the Medicare
Trust Fund, having considered the same, reports favorably
thereon as modified, and recommends that the bill, as modified,
do pass.
Background and need for legislative action
Medicare audits and appeals pose a serious burden for
health care providers and suppliers as well as for review
contractors seeking to reduce federal healthcare programs'
improper payments. The Improper Payments Information Act of
2002 requires the Department of Health and Human Services (HHS)
to identify programs within HHS that may be susceptible to
significant improper payments. Improper payment estimates
reported by HHS and other federal agencies are not intended to
be an estimate of fraud. Instead, improper payments include any
payments that should not have been made or that were made in an
incorrect amount (including overpayments and underpayments)
under statutory, contractual, administrative, or other legally
applicable requirements. Office of Management and Budget
guidance directs agencies to include in their calculations any
payments for which insufficient or no documentation was found.
Within HHS, the Centers for Medicare & Medicaid Services
(CMS) measures the improper payment rate, and the associated
dollar amount, each year for the Medicare fee-for-service
program, Parts C and D, and Medicaid. In 2009, Medicare's
improper payment rate was 10.8 percent, or $30.8 billion. In
2011, the error rate decreased to 8.6 percent, or $28.8
billion, and by 2013, the error rate was back up to 10.1
percent, or $36 billion. CMS has attributed the error rate's
rise in part to new requirements for certain claims,
particularly for DME and home health.
The Medicare improper payment rate includes many different
types of payments to many different types of providers and
suppliers. The most common cause of improper payments during
the 2013 report period (accounting for 56.8 percent of total
improper payments) was a lack of documentation to support the
services or supplies billed to Medicare. Improper payments are
not consistent across the fee-for-service programs. In 2013,
Medicare Part A had an error rate of 8.1 percent. In Medicare
Part B, payments to suppliers of durable medical equipment,
prosthetics, orthotics and supplies (DMEPOS) had an error rate
of 58.2 percent.
CMS hires a variety of private review contractors to
identify improper Medicare payments and lower error rates.
Medicare Administrative Contractors (MAC) primarily process
claims and handle related functions. As part of their
administrative role, MACs also conduct certain claims reviews
to identify and correct improper payments. Zone Program
Integrity Contractors (ZPIC) investigate instances of suspected
fraud, waste, and abuse and take appropriate corrective
actions. The Supplemental Medical Review Contractor (SMRC) was
created to identify and employ more efficient methods of
medical review, such as data extrapolation. The SMRC conducts
nationwide medical reviews as directed by CMS, including issues
identified by CMS data analysis and/or by agencies including
the HHS Office of Inspector General (HHS-OIG), the Government
Accountability Office, and the Comprehensive Error Rate Testing
(CERT) auditor. CERT auditors measure improper payments in the
Medicare fee-for-service program to determine the annual
improper payment rate. Finally, Recovery Auditors (RA),
formerly referred to as Recovery Audit Contractors (RAC),
identify and correct improper overpayments and underpayments in
the Medicare program. Unlike other types of Medicare
contractors that are paid in fixed amounts based on their
costs, RAs are paid on a contingency basis--receiving 9 to 12.5
percent of the corrected improper payment amounts. This
contingency fee structure gives RAs a financial incentive to
identify and collect improper payments.
Despite CMS's efforts, the improper payment rate in the
Medicare program remains high. The Government Accountability
Office found in fiscal year 2014, approximately 10 percent of
the $603 billion Medicare payments were improperly paid.
Dodaro, Gene L., Testimony before the Senate Committee on
Finance, Fiscal Outlook: Addressing Improper Payments and the
Tax Gap Would Improve the Government's Fiscal Position, GAO-16-
92T at 6 (Oct. 1, 2015), available at http://www.gao.gov/
assets/680/672884.pdf. The large number of improper payments
has led to an increased number of audits to recapture
improperly paid funds. Although CMS's contractors are making
progress recovering funds, the increase in audits has
contributed to an extraordinary increase in appeals of payment
determinations.
Providers and beneficiaries are able to appeal Part A and
Part B improper payment determinations made by MACs or other
Medicare review contractors through a four-stage administrative
appeals process. The first level of appeal is reviewed by a
MAC, the contractor that processes the claim submitted for
payment and that may have made the original improper payment
determination.\1\ For the second level of appeal, providers and
beneficiaries can appeal to a Qualified Independent Contractor
(QIC) and receive an independent review conducted by
clinicians.\2\ The third level of appeal is heard by an
Administrative Law Judge (ALJ) at HHS's Office of Medicare
Hearings and Appeals (OMHA). For the third level, appellants
must meet an amount in controversy threshold, which is updated
on an annual basis ($150 for 2015). The fourth and final
administrative stage of appeal is review by the Medicare
Appeals Council (Appeals Council), which is a component of
HHS's Departmental Appeals Board (DAB). After exhausting these
four administrative appeals, parties can seek judicial review
in federal District Court. For judicial review, appellants must
again meet an amount in controversy threshold, which is also
updated on an annual basis ($1460 for 2015).
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\1\Improper payment determinations by other Medicare contractors
(for example, Medicare audit contractors like RAs and ZPICs) are also
appealed to the MAC. Providers have an opportunity to question an
overpayment determination with the contractor that made the
determination before making the formal appeal (request for
redetermination) to the MAC.
\2\QICs do not process claims or conduct audits--they are only
involved in the appeals process. QIC conduct independent
reconsiderations of Medicare overpayment determinations and claims
denials and are required to use clinicians (nurses and physicians) for
cases involving questions of medical necessity. QICs were created by
the Medicare, Medicaid, and SCHIP Benefits Improvement and Protection
Act (BIPA) of 2000, which included provisions to improve the Medicare
appeals process. Part of these provisions mandate that all second-level
appeals be conducted QICs.
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Although some beneficiaries appeal payment decisions, the
majority of appellants (85 percent) are providers. Two percent
of these providers accounted for nearly one-third of all ALJ
appeals in FY 2010. And, some provider-appellants filed many
more appeals than others. On average, providers filed six
appeals each, but 96 providers filed at least 50 appeals each,
and one provider filed over 1000 appeals.\3\ The vast majority
of RA audits are not appealed (in 2011, only 6.7 percent of RA
improper payment determinations were appealed).
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\3\Improvements are Needed at the Administrative Law Judge Level of
Medicare Appeals, HHS-OIG, OEI-02-10-00340 (November 2012); see also
Nudelman, Jodi, Statement to the House Committee on Ways and Means,
Subcommittee on Health, Current Hospital Issues in the Medicare
Program, Hearing May 20, 2014.
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Although most RA audit decisions are not appealed, the
expansion of RA audits has coincided with the rise in appeals,
which has contributed to the backlog at OMHA. At the time of
this report, there are so many appeals being filed that the
Office of Medicare Hearings and Appeals (OMHA) cannot docket an
appeal for 20 to 24 weeks and the backlog of cases is near
1,000,000.
The HHS-OIG report found that some ALJs were more likely
than others to make decisions that were fully favorable to
appellants. Among the 66 ALJs, the fully favorable rate ranged
from 18 to 85 percent. HHS-OIG reported that ALJ staff stated
that different philosophies among ALJs contribute to the
variation in fully favorable rates. ALJ staff said that given
the same facts and the same applicable Medicare policy, some
ALJs would make decisions that are favorable to appellants,
while others would not.
This bill addresses the primary causes of the increase in
appeals and the backlog itself. First, the bill will improve
CMS oversight of audit contractors and require better
coordination between auditors and CMS. The bill will ensure
that all parties receive transparent data regarding review
practices and appeal outcomes at each level of review. Second,
the bill will require that CMS create new incentives to improve
auditor accuracy. It will also require that CMS create an
independent Ombudsman for Medicare Reviews and Appeals to
assist in resolving complaints by appellants and those
considering appeal. Finally, the bill will make needed reforms
to and increase funding for the Medicare appeals process to
address the appeals backlog and ensure timely reviews, without
sacrificing quality. The bill will raise the amount in
controversy for review by an ALJ to match the amount for review
by a District Court. The bill will create a new Medicare
magistrate program for cases with lower costs, allowing senior
attorneys with expertise in Medicare law and policies to
adjudicate cases in the same way as ALJs. It will allow for the
use of sampling and extrapolation, with the appellant's
consent, to expedite the appeals process. The bill will also
establish a voluntary alternate dispute resolutionprocess for
multiple pending claims with similar issues to be settled as a unit,
rather than as individual appeals.
The Committee recognizes the need to address this serious
backlog to ease the burden on physicians and other health care
providers and on beneficiaries.
II. Explanation of the Bill
The present law applicable to sections 2 through 6, and 8
of the bill is discussed at the beginning of section II, part A
(there are no provisions in present law for sections 1, 7 and
9). Part A then explains the provisions of each section
separately. The present law and provisions of sections 10, 11,
12, and 13 of the bill are discussed in section II, parts B, C,
D, and E respectively.
A. SECTIONS 1-9, IMPROVEMENTS TO THE APPEALS PROCESS
PRESENT LAW
Section 1869 of the Social Security Act (Act)\4\ and
accompanying regulations establish a process for making
determinations with respect to benefits under Parts A and B of
Medicare and appealing these determinations when a claim for
benefits is denied in whole or in part. In accordance with
regulations, the Secretary of HHS (the Secretary) is required
to make an initial determination concerning, for example, the
amount of benefits available to the individual, or whether
payment may not (or may no longer be) made for an item or
service. The appeals process created under section 1869 offers
up to five levels of review under which individuals (i.e.,
beneficiaries, providers, suppliers, and State Medicaid
Agencies) may challenge an adverse initial determination.
First, pursuant to this section and accompanying regulations,
an individual may request a Medicare Administrative Contractor
(MAC) to make a redetermination with respect to the claim.
Redeterminations generally must be concluded no later than 60
days after the day the contractor receives the request.
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\4\Section 1155 also results in appeals under Medicare A/B, from a
Quality Improvement Organization initial determination, and
reconsideration, to an ALJ and the Council. A different amount in
controversy currently applies ($200) and the rules are in part 478 of
42 CFR. In addition, sections 1852(g)(5), 1876(c)(5)(B), and 1860D-4(h)
have appeal provisions for the Medicare managed care and prescription
drug programs.
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Second, section 1869 of the Act permits any individual
dissatisfied with the initial determination and the
redetermination to file a request for reconsideration. Pursuant
to section 1869(c), reconsiderations are conducted by Qualified
Independent Contractors (QICs) that must meet certain specified
requirements, and the Secretary is required to enter into
contracts with no less than 4 of these entities.
Reconsiderations must be processed within 60 days, subject to
exception. Section 1869(b) of the Act also provides that an
individual may request, and the Secretary must provide, an
expedited determination or expedited reconsideration of an
individual determination if an individual receives a notice
that a provider of services plans to (1) terminate all services
to an individual (and a physician certifies that failure to
continue the provision of services likely places the
individual's health at significant risk), or (2) discharge the
individual from the provider.
In accordance with section 1869 and implementing
regulations, if an individual is dissatisfied with a QIC's
reconsideration, or if the adjudication period for the QIC to
conclude its reconsideration has passed, the party may request
a hearing before an Administrative Law Judge (ALJ). Section
1869(d) specifies that an ALJ must render a decision on such
hearing no later than the end of the 90-day period following
the date of when the request for the hearing was timely filed,
subject to exception. Further, the Secretary must provide
continuing education to these ALJs (as well as QICs) with
respect to coverage of items or services under Medicare and
certain policies of the Secretary, in order for such
contractors and judges to make informed decisions on appeals.
In order to be entitled to a hearing before an ALJ, certain
amount in controversy requirements must be met. Section 1869(b)
of the Act establishes amount in controversy threshold amounts
for ALJ hearing requests for Medicare Part A and Part B
appeals\5\ that are subject to an annual adjustment. As
indicated in a notice published in the Federal Register, for
calendar year 2015, if the amount in controversy is less than
$150, an ALJ hearing is not available to an individual under
this section. In determining the amount in controversy, the
Secretary, pursuant to regulations, must permit two or more
appeals to be aggregated\6\ if the appeals involve the similar
or related services provided to the same individual by one or
more providers or suppliers or common issues of law and fact
arising from services provided to multiple individuals by one
or more providers or suppliers.
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\5\Except those appeals for an ALJ hearing brought under Section
1155 of the Act.
\6\The amount in controversy (AIC) applies to the amount of the
claim, and aggregation allows multiple claims that do not meet the AIC
to be brought together to get a hearing--slight distinction, but an
important one, as a single appeal may involve multiple claims.
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Section 1869(b)(3) of the Act currently states the
following: ``A provider of services or supplier may not
introduce evidence in any appeal under this section that was
not presented at the reconsideration conducted by the QIC under
subsection (c) of this section, unless there is good cause
which precluded the introduction of such evidence at or before
that reconsideration.''
After an ALJ hearing decision or dismissal has been issued,
or if the ALJ has failed to render a decision within the
specified timeframe, parties may request review by the
Departmental Appeals Board of the Department of Health and
Human Services (HHS), the final level of administrative appeal.
Under section 1869(d) of the Act, in general, the Departmental
Appeals Board must conduct and conclude its review and make a
decision or remand the case to the ALJ for further
consideration no later than 90 days following the date of a
request for review. If a party wishes to appeal the decision of
the Board, or the Board's time frame for issuing a ruling has
elapsed, judicial review may be requested. Claims are filed in
U.S. district court, and are subject to an amount in
controversy ($1,460 for calendar year 2015) and other
requirements. Additionally, section 1869(b) directs the
Secretary to establish a process under which beneficiaries,
providers, and suppliers can obtain expedited access to
judicial review. This access may be granted if a review entity
(comprised of at least three ALJs or members of the
Departmental Appeals Board) determines that the Board does not
have authority to decide questions of law or regulation
relevant to matters in controversy, and there is no material
issue of fact in dispute. A party may also bring an action in
district court if the review entity generally fails to make a
determination within 60 days.
According to the HHS, FY2016 Justification of Estimates for
Appropriations Committees, the Office of Medicare Hearings and
Appeals (OMHA) was appropriated discretionary funding of $82.4
million in FY2014 and $87.4 million in FY2015. HHS requested
$270 million in the President's FY2016 budget proposal which
included $140 million in discretionary budget authority and
$130 million in program funding from proposed legislation. The
$130 million in proposed FY2016 program funding from
legislation includes indefinite mandatory authority to access a
$125 million appropriation from Medicare Recovery Audit
Contractor (RA) overpayment recoveries.
EXPLANATION OF PROVISIONS
Section 1--Short title; table of contents
Section 2--Increased resources for the Office of Medicare Hearings and
Appeals and the Departmental Appeals Board
The bill would require $127 million per year to be
appropriated from the Medicare Hospital Insurance (HI) and
Supplemental Medical Insurance (SMI) Trust Funds (in amounts to
be determined at the Secretary's discretion) beginning in
FY2016, providing $125 million to OMHA and $2 million to the
Departmental Appeals Board of HHS for purposes of conducting
reviews, hearings, and appeals. The funds appropriated would be
available until spent and would be in addition to any other
funds that may be available to OMHA and the Departmental
Appeals Board for the same purposes.
The bill would require the Government Accountability Office
(GAO) to conduct a review of the use of the additional funds
provided to determine if OMHA increased the number of appeals
processed, decreased the time required to process an appeal,
and achieved other program improvements. GAO would be required
to report such information to Congress no later than December
31, 2018.
Section 3--Establishment of Medicare magistrate reviews and revision of
amount in controversy thresholds
The bill would establish within OMHA decision-making
officials known as Medicare magistrates. Beginning on January
1, 2017, Medicare magistrates would perform reviews and render
decisions in certain appeals described below. Medicare
magistrates would be licensed attorneys with expertise in the
Medicare statute, policies, and procedures, who would be
appointed by the Secretary of HHS, and meet other
qualifications as determined by the Secretary of HHS.
Medicare magistrates would perform reviews and render
decisions that are appealed to OMHA when the amount in
controversy of an appealed claim is less than the new amount in
controversy as established by this section (described below)
for an ALJ hearing through OMHA but equal to or greater than
the amount in controversy under current law for an ALJ hearing
through OMHA (for example for FY2015 an appealed claim with an
amount in controversy that falls in between $150 and $1,460).
The current rules and guidelines that govern appeals
adjudicated by ALJs would apply to Medicare magistrates and the
independent reviews conducted by Medicare magistrates.
Decisions made by Medicare magistrates could be appealed to the
Departmental Appeals Board but could not be appealed to the
federal court level because the amount in controversy would be
below the threshold required by the federal court level.
The bill would increase the current amount in controversy
threshold for Medicare appealed claims heard by an ALJ through
the OMHA from the current amount of $150 set for FY2015 to a
dollar threshold equal to the amount in controversy as required
for Medicare appealed claims to be heard at the federal court
level. The new threshold is effective in calendar year 2017 and
would be indexed for inflation and updated annually as it is in
current law.
Section 4--Remanding appeals to the redetermination level with the
introduction of new evidence
Beginning on January 1, 2017, the bill would require a QIC;
a Medicare magistrate, as established in section 2; an ALJ, or
the Departmental Appeals Board to remand an appeal to the MAC
for a redetermination when the appellant introduces new
evidence into the administrative record at a subsequent level
of appeal.
The bill would provide an exception to the remand process
described above when the introduction of new evidence is made
by an individual entitled to, or enrolled for, benefits under
part A or enrolled under part B, or CMS or its contractors, or
justified due to 1) an inadvertent omission or erroneous
decision by a lower level adjudicator to omit the evidence from
the administrative record despite its timely submission by the
appellant, 2) an instance where a decision by a lower-level
adjudicator was made on new or different grounds than the
initial decision, or 3) other circumstances as determined by
the Secretary of HHS.
Section 5--Expedited access to appeals
No later than January 1, 2017, the bill would require the
Secretary of HHS to establish and implement a process whereby
ALJs and Medicare magistrates, as established in section 2,
could issue decisions, based on the evidence of record, without
holding a hearing when there are no material issues of fact in
dispute and the ALJ or the Medicare magistrate determines that
there is a binding authority that controls the decision in the
matter under review. The new process described above would
apply to requests for review that are pending on or filed after
the date of the enactment of this bill.
The bill would require the Secretary of HHS to establish a
process by which an appeal before an ALJ can be certified for
expedited access to judicial review when 1) the appellant has
not requested expedited access to judicial review, 2) there is
no material fact in dispute, and 3) neither the ALJ nor the
Departmental Appeals Board has the authority to decide the
questions of law or regulation relevant to the matters in
controversy. Such a determination would exhaust the
administrative appeals process, rendering the appeal eligible
for judicial review.
Section 6--Authority to use sampling and extrapolation methodologies
and to consolidate appeals for administrative efficiency
As of the date of enactment, the bill would allow for a
review entity (e.g., a MAC or a QIC); a Medicare magistrate, as
established in section 2; an ALJ, or the Departmental Appeals
Board to consolidate more than one pending request for review
or appeal into a single action or appeal if 1) the individual
requests involve one or more common question of fact or law for
similar claims submitted by the same individual or entity, 2)
the party requests aggregation of claims, 3) the requests for
review or appeal were included within a statistical sample
during initial review or previous level of appeal, or 4) other
circumstances that are identified by the Secretary of HHS prior
to the use of consolidation that would promote administrative
efficiency.
The bill would require a request for review or appeal that
had been previously consolidated at a lower level of appeal or
involving claims that were included as part of an extrapolation
to be submitted as a single request for review or appeal in
order to be entitled to a review or hearing. When an appeal
involves a decision that was based on a statistical sample at a
lower level, the adjudicator's decision of such appeal must be
based on the same statistical sample. The bill would allow an
adjudicator to use statistical sampling and extrapolation
methodologies for any requests for review or appeals that are
pending on or filed after the date of the enactment of this
bill, with the consent of the appellant.
Section 7--Identification and referral of fraud
No later than January 1, 2017, the bill would require the
Secretary of HHS, in consultation with HHS Inspector General
and the Attorney General, to establish and implement a process
by which OMHA and the Departmental Appeals Board would refer
credible suspicion of fraudulent activity to appropriate law
enforcement entities and CMS.
Section 8--Study to assess hearing participation
No later than January 1, 2017, the bill would require the
Secretary of HHS to conduct a review to determine whether it
would be feasible to increase the participation of the CMS or
the review entity contractors (e.g., program integrity
contractors, RAs, MACs, QICs) in appeal hearings conducted by
OMHA, including a process to provide notice of a hearing to all
relevant contractors.
Section 9--Improvements to the Office of Medicare Hearings and Appeals
Beginning in calendar year 2017, the bill would require
OMHA to conduct annual training for all ALJs and Medicare
magistrates on Medicare policies, including changes made to
such policies in a given year.
Beginning on January 1, 2017, in the instance the
magistrate or ALJ reach a different decision than the QIC, the
written decision of the magistrate or ALJ must explain the
reason the decision reached by the Medicare magistrate or ALJ
is different than the decision made by the QIC.
Beginning on January 1, 2017, the bill would require the
Secretary of HHS to publish annually on a publically accessible
website the following: 1) the percentage of appeals that
receive fully favorable, partially favorable and unfavorable
decisions; 2) such information (described in 1) for each
individual ALJ and by type of service (e.g., Part A hospital,
Part B, durable medical equipment); 3) the length of time
elapsed between request for review and final decisions; 4) the
instances in which the Departmental Appeals Board reversed or
remanded the decisions of individual ALJs on the grounds that
they diverted from Medicare policies and coverage; 5) the
instances in which individual ALJs reached a decision that
differed from the opinion of a physician employed by the QIC;
and 6) other information as determined by the Secretary of HHS
that would provide greater transparency of OMHA.
The bill would require the GAO to conduct a review of
decisions rendered at OMHA to identify the frequency in which
(i) ALJ or Medicare magistrate decisions diverted from CMS
interpretation of Medicare policies and program instruction,
(ii) ALJ or Medicare magistrate decisions demonstrate
significant variation in the interpretation of similar Medicare
policies or instruction, and (iii) ALJ or Medicare magistrate
decisions failed to apply the applicable Medicare law,
regulation, policy or instruction. Nothing in this section
shall be construed as questioning the independence of the ALJs,
but is to be used to provide empirical information regarding
how ALJ decisions are reached. Data related to the frequency in
which ALJ decisions diverted from Medicare law, regulation,
policy, or coverage decisions shall focus on decisions
adjudicated no less than one year after the enactment of this
bill and may be evaluated through the use of sampling. This
shall be reported to Congress no later than January 1, 2018.
No later than July 1, 2018, the bill would require the
Secretary of HHS to establish and implement a process to
identify Medicare policies or coverage decisions that, when
surrounded by similar facts or circumstances are most
frequently interpreted differently by Medicare review entity
contractors, Medicare magistrates, ALJs, or the Departmental
Appeals Board. Such a process should determine whether further
clarification or adjustment to such policies is needed to
prevent future varied interpretations.
The bill would require the Secretary of HHS to determine if
the specialization of ALJs by type of appeal (i.e., the type of
Medicare service or provider) and/or the mandatory use of
clinical experts alongside ALJs would lead to more consistent
decisions made by ALJs for cases with similar facts. The
Secretary of HHS shall conduct a study to investigate such
issues and report to Congress no later than July 1, 2018.
Beginning in calendar year 2017, the bill would require the
Secretary to establish alternative dispute resolution
processes, including mediation, in which providers, suppliers,
beneficiaries, or State Medicaid Agencies could voluntarily
resolve large volumes of pending appeals involving similar
issues of law or fact. As part of any settlement agreement, the
appellant would be required to withdraw all requests for
hearing or review for the claims covered by the settlement. The
Secretary would have discretion to establish the program in a
cost-effective manner, including consideration of thresholds
and available resources. The Secretary of HHS would establish a
process to coordinate with appropriate law enforcement
officials and/or CMS to avoid inadvertent settlement or
resolution of cases or appeals with suspected fraud or abuse,
systematic gaming, or delays in the provision of care or other
criminal activity.
B. SECTION 10, REVIEW PROGRAM IMPROVEMENTS
PRESENT LAW
Current law does not specifically require the Secretary of
HHS to establish guidelines and methodologies for reviewing
reimbursement claims submitted by providers and suppliers.
The Secretary is required to administer Medicare Parts A
(Act, section 1816) and B (Act, section 1842) by contracting
with MACs as identified at section 1874A of the Act. In
addition, current law (Act, section 1893) established the
Medicare Integrity Program (MIP), which requires the Secretary
to contract with eligible entities to conduct program integrity
activities. Under MIP, the Secretary is required to contract
with Medicare RAs to identify Medicare overpayments and
underpayments (Act, section 1893(h)). RAs are required to be
paid only from funds that were recouped as a result of their
reviews in the form of contingency fees which consist of a
percentage of the overpayment and underpayment amounts they
identify. The Secretary also was authorized to use a portion of
RA recoveries to administer the RA program. All other RA
overpayment funds recovered from providers are returned to the
Medicare Trust Funds. Recently, Sec. 505(b) of the Medicare
Access and CHIP Reauthorization Act of 2015 (MACRA, P.L. 114-
10) authorized the Secretary to use up to 15% of RA recoveries
for additional purposes.
In implementing MIP requirements, the Secretary also
established contracts with other entities that include Zone
Program Integrity Contractors (ZPIC), a Supplemental Medical
Review Contractor (SMRC), and a Medicare-Medicaid Data Match
Contractor (MMDMC).
The Centers for Medicare & Medicaid Services uses Medicare
contractors to review claims submitted by providers and
suppliers both before and after claims are paid. MACs, in
addition to initial and routine scanning for completeness and
consistency, also conduct certain claim review activities prior
to paying claims (prepayment review), as well as after paying
claims (post-payment review). Other contractors such as RAs,
ZPICs and SMRCs, also review Medicare claims after payment was
made. Most post-payment claim reviews involve medical review,
which CMS describes as ``the collection of information and
clinical review of medical records by Medicare contractor staff
to ensure that payment was made only for services that met all
Medicare coverage, coding, and medical necessity
requirements.''\7\ Medical review processes and decisions
generally are guided by policies that may be provided in CMS
manuals or required by CMS, but developed and implemented by
contractor staff. Medical review processes and policies can
vary depending on the contractor type--MAC, RA, ZPIC, QIC,
SMRC, or MMDMC--conducting the review, the individual
contractors, and the type of service under review. Current
Medicare law gives Medicare contractors discretion to develop
and tailor coverage decisions to local medical conventions and
preferences; as a result there is some variation in
interpreting and enforcing medical review policies.
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InpatientHospitalReviews.html
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CMS, through contractor oversight and contractor
performance requirements, facilitates most coordination among
MACs. CMS also has administrative policies and procedures to
help minimize medical review duplication or inconsistency with
Medicare law, regulations, and program instructions, but is not
required to do so under current law. The Secretary also is
required to assure that the duties of MACs do not overlap with
other contractors, including RAs, although overlap with durable
medical equipment (DME) suppliers is permitted (Act, section
1874A(a)(5)(A)).
EXPLANATION OF PROVISION
The bill would require the Secretary of HHS to promote
transparency and consistency in Medicare payment and coverage
policy, as appropriate, and ensure that review entity
contractors uniformly and consistently apply these policies and
that Medicare magistrates, ALJs, and the Departmental Appeals
Board are aware of and trained in these policies. Nothing in
this section should be construed as questioning the
independence of Medicare magistrates, ALJs, or the Departmental
Appeals Board, but is to help ensure that consistent guidelines
and methodologies exist and are available to those entities
reviewing reimbursement claims submitted by providers and
suppliers.
The bill would require the Secretary of HHS to approve
review guidelines and methodologies prior to their use in the
review of any claims paid by Medicare. The bill would allow the
Secretary of HHS to provide or establish a transition period by
which existing reviews would be permitted to continue until
such time as the Secretary of HHS is able to review and approve
the review guidelines or methodologies. Review topics or
guidelines that have been approved for use by the Secretary
shall be made publically available on the CMS website, no less
frequently than annually. Review topics shall be posted and
publically available for a reasonable amount of time before
they are used. The Secretary of HHS may prioritize the
guideline and methodology approval process according to error
rate, frequency of denials, and cost to the Medicare Trust
Fund.
The bill would require the Secretary of HHS to designate a
point of contact to coordinate, oversee, and perform the
following tasks, in order to improve upon the existing and
future program integrity initiatives and to limit unnecessary
provider or supplier burden.
1. Develop a comprehensive strategy for claims review
determinations made on either a prepayment, post-
payment, or prior-authorization basis. The strategy
shall focus on identifying and reducing those claim
errors that have the largest impact on the error rate,
pose the greatest risk to the Medicare Trust Fund, or
are likely to negatively affect quality of care. In
developing such strategy, the Secretary shall consider
ways to reduce unnecessary burden on providers and
suppliers and minimize any unintended effects of these
policies on beneficiaries. Such strategy should utilize
data and other sources including: claims data, Office
of Inspector General reports, GAO reports, news
reports, Medicare Payment Advisory Commission reports,
and Comprehensive Error Rate Testing (CERT) reports;
2. Develop methods to ensure that there is not
unnecessary duplication of review of specific
individual claims among the review entity contractors
used by the Department to conduct claims review,
including the use of all available data;
3. Work with all review entity contractors to develop
a uniform, consistent, and transparent review process
to reduce provider and supplier burden to the greatest
extent possible by including a uniform approach for
review entity contractors to notify parties of pending
reviews and requests for medical documentation;
improved communication with providers and suppliers;
methods for providing review results; and better
refinement of reviews to target claims that are at the
highest risk for improper payments or other errors; and
any other areas in which the Secretary determines
provider and supplier burdens may be decreased;
4. Identify CMS local coverage determinations (LCDs),
national coverage determinations (NCDs), regulations,
and program instructions that need updating or
inappropriately conflict with other Medicare policies
and make the appropriate modifications. Nothing in this
section shall be construed as undermining the
independent authority of Medicare magistrates, ALJs, or
the Departmental Appeals Board; rather, these policies
should be modified and updated in a manner consistent
with all existing statute and regulations. In the event
that the Secretary of HHS identifies a lack of
necessary Medicare policies and review guidelines
related to a particular issue, the Secretary of HHS
shall establish such instructions, with input from
stakeholders, as appropriate;
5. Post on a publicly accessible website the volume
and type of prepayment and post-payment claim reviews
performed by the Medicare review contractors;
6. Coordinate with OMHA and the Departmental Appeals
Board to ensure that the improved methodologies and
evidentiary standards established within this bill,
such as the decision to remand an appeal, are properly
implemented;
7. Ensure that providers and suppliers subject to
post-payment review are granted a discussion period
with the contractor of at least 30 days from the letter
from the review entity contractor regarding the result
of the review;
8. Develop qualification standards for review entity
contractors to have audits conducted or approved by
medical doctors with knowledge of relevant Medicare
laws, policies, and program instruction, as
appropriate.
9. Determine whether additional punitive actions
against review entity contractors could be taken and
what, if any, financial incentives or disincentives
could be used to promote the accuracy of a review
entity's reviews.
The bill would require the Secretary to establish a secure
internet based system for access by providers, and other
appropriate entities, in order to determine status of claims
under review by any Medicare audit or oversight contractor, or
that is being processed as an appeal by a MAC, QIC, ALJ, or the
Departmental Appeals Board. This system could be based on the
existing database system of claims under review used by audit
contractors, or a similar existing system. The Secretary shall
report to Congress within 180 days of passage of the Act on a
plan to establish and operate such a portal. The Secretary
shall ensure that such system does not impede any ongoing
investigations of potential fraud.
The bill would require, as part of the annual RA report to
Congress under current law, the following information be
included: (1) include number of claims corrected in the
discussion period; (2) a separate calculation that identifies a
total overturn rate for appeals in which an appealed claim is
only once, based upon the decision made at the highest appeal
level; (3) carefully describe the denominator of total audits
and appeals, given the likelihood that many appeals in a given
year will not have a decision in that year; and (4)
consistently report complex Part A, complex Part B, semi-
automated, and automated reviews separately.
C. SECTION 11, CREATION OF MEDICARE PROVIDER AND SUPPLIER OMBUDSMAN FOR
REVIEWS AND APPEALS
PRESENT LAW
Under current law, the Secretary is not required to offer
Medicare providers or suppliers access to an Ombudsman.
According to CMS's annual beneficiary publication, Medicare &
You,\8\ an ombudsman is someone who reviews complaints and
helps to resolve those complaints.
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Current law requires the Secretary to conduct a
satisfaction survey at least every five years of beneficiaries
as well as providers and suppliers who submitted appeals (Act,
section 1869(e)) and to submit a report to Congress on the
results of the survey. In addition, section 1808(c) of the Act
requires the Secretary to appoint a Medicare Beneficiary
Ombudsman. The Office of Medicare Ombudsman (OMO) was created
to identify and address systemic issues that affect Medicare
beneficiaries, but OMO does not assist providers, suppliers, or
Medicare contractors in resolving complaints and other issues.
EXPLANATION OF PROVISION
The bill would require the Secretary of HHS to establish a
CMS OMBUDSMAN FOR MEDICARE REVIEWS AND APPEALS. The Medicare
Provider & Supplier Ombudsman's duties would include:
1. Identifying, investigating, and assisting in the
resolution of complaints and inquiries (including referring to
the appropriate entity) involving Medicare review or appeals
processes from appellants or those considering appeals.
2. Identifying trends in complaints and inquiries regarding
the current Medicare review and appeals systems to provide
recommendations for improvements to the Secretary of HHS. Such
recommendations would improve the efficacy and efficiency of
the claims review and appeals system as well as communication
to beneficiaries, providers, and suppliers regarding the claims
review and appeals system.
3. Designing a system by which to objectively measure and
evaluate reviewer responsiveness to addressing provider and
supplier issues and Ombudsman inquiries.
4. Providing administrative and technical assistance to
appellants and those considering appeals.
5. Publish data regarding the number of review
determinations appealed, each appeal's outcome, and aggregate
appeal statistics for each contractor, provider and supplier
type. Such data shall be displayed in a uniform, consistent,
and easily understood format.
6. Assisting in education and training efforts for
providers, suppliers, and review entity contractors.
7. Communicating with the Medicare Beneficiary Ombudsman to
assist with the identifying, investigating, and resolution of
beneficiary-related complaints, including those that overlap
with reviews and appeals submitted by a provider.
D. SECTION 12, LIMITING THE AUDIT AND RECOVERY PERIOD FOR PATIENT
STATUS REVIEWS
PRESENT LAW
Current law also requires RA contracts to permit RAs to
review claims in the current fiscal year and retrospectively
for up to four additional fiscal years, for a total of five
fiscal years (SSA Sec. 1893(h)(4)(A) and (B)). According to the
RA Statement of Work currently in effect, the look-back period
is measured from the date of the initial determination to the
daate of the RA issues the medical records request letter for
complex reviews, the overpayment notification letter for semi-
automated reviews, or the demand letter for automated reviews.
Currently, CMS has limited the RA look-back period to three
fiscal years.
Section 6404 of the Patient Protection and Affordable Care
Act (ACA, P.L. 111-148) amended the SSA to limit the maximum
period for provider and supplier submission of Medicare claims
to one calendar year from the date of service (SSA
Sec. 1814(a), Sec. 1842(b)(3), and Sec. 1835(a)). Under the new
RA contracts, CMS indicated that it would limit the RA look-
back period to six months from the date of service for patient
status reviews, where hospitals submitted claims within three
months of the date of service.
To comply with timely filing rules, as stated above,
hospitals must submit a claim within one year from the date of
service, but the RAs have a three year look-back period. When a
RA issues a decision denying an inpatient status claim that is
more than one year from the date of service, the hospital is
unable to re-bill as an outpatient service because the time
period for filing a claim has expired.
For most acute care hospitals, Medicare uses two distinct
payment systems for inpatient and outpatient services.
Hospitals can sometimes receive substantially higher payments
for the same services if patients were admitted to the hospital
as inpatients rather than treated as outpatients.
A number of hospital claims reviewed by RAs since FY2010
were identified as inappropriate payments because RAs
determined that the care should have been delivered in
outpatient settings rather than the inpatient setting where
hospitals delivered the services, so the claims were not
reasonable and necessary for payment under Medicare Part A.
When these (Part A) inpatient claims were denied, under the
prior CMS policy, hospitals were prohibited from resubmitting
the claims as (Part B) outpatient claims, except for a limited
number of services. Hospitals appealed many of these claims.
Some claims were overturned at third and fourth appeal levels
(ALJ and Medicare Appeals Council levels); other claims are
pending in the appeal process.
On March 13, 2013, CMS issued a Ruling that established a
process for handling these claims that were being appealed,
which allowed rebilling of inpatient services under Part B when
an inpatient claim was denied. CMS also published a rule
finalizing the policy on rebilling these claims under Part B,
on how claims should be re-submitted, and on how the resolution
of claims already appealed could be expedited. The rule also
clarified when it would generally be appropriate for an
inpatient admission to be paid under Medicare Part A, referred
to as the Two-Midnight Rule, which stipulated that in cases
where a doctor expects a patient would require a hospital stay
for at least two midnights, it would be considered a medically
necessary inpatient stay. CMS believed that the Ruling and the
Rule on Medicare Part B inpatient billing would help to clarify
appropriate billing procedures and reduce overpayments and
appeals.
Even under the Part B inpatient billing policy, hospitals
may be unable to resubmit denied Part A inpatient claims under
Part B because providers and suppliers must submit claims
within one calendar year of the date of service to comply with
timely filing rules, whereas RAs can look back three previous
fiscal years when reviewing claims. If RAs review Part A
inpatient claims from three fiscal years ago prior and deny
claims, under timely filing rules, it is too late for the
hospital to resubmit the claim under Part B for payment.
The Protecting Access to Medicare Act of 2014 (PAMA, P.L.
113-93) required the Secretary to prohibit RAs from reviewing
inpatient claims for patient status (whether a patient is an
inpatient or an outpatient) with admission dates between
October 1, 2013 and March 31, 2015 (PAMA, Sec. 111--Extension
of Two-Midnight Rule). PAMA also specifically permitted the
Secretary to review inpatient claims if there was evidence of
systemic gaming, fraud, abuse, or delays in the provision of
care. Under PAMA, other Medicare contractors, such as MACs, are
permitted to review a sample of inpatient claims to assess
compliance and educate providers on Medicare's Two-Midnight
rule under a Probe and Educate process.
MACRA extended the PAMA provisions at Sec. 111 that
prohibited RA reviews of patient status on inpatient claims
from April 1, 2015 through September 30, 2015 (MACRA,
Sec. 521--Extension of Two-Midnight PAMA Rules on Certain
Medical Review Activities). MACRA also stipulated that the
Secretary was permitted to pursue fraud and abuse activities
under RA authority or otherwise.
EXPLANATION OF PROVISION
The bill would prohibit RAs from conducting patient status
reviews (i.e., inpatient versus outpatient status) more than 6
months after the date of service if the claim was submitted
within 3 months of the date of service.
The bill would require the Secretary to study the potential
burden on providers and suppliers of the look-back period under
current law and the impact of shortening the look-back period
for other RA audits, including audits for physicians and other
health care providers and suppliers, and would provide the
Secretary with discretion to implement a look-back period to a
period of less than three years. The bill would require the
Secretary to make the study publicly available.
The bill would direct the Secretary of Health and Human
Services no later than six months after the enactment of this
bill to submit a report to Congress with recommendations to
change the recovery audit payment structure, in budget-neutral
matter, from an incentive-based model to a non-incentive based
approach without additional financial burdens on providers.
E. SECTION 13, INCENTIVES AND DISINCENTIVES FOR MEDICARE CONTRACTORS,
PROVIDERS, AND SUPPLIERS
PRESENT LAW
Medicare law requires participating providers and suppliers
to comply with Medicare requirements stipulated in the Act as
well as CMS regulations. Medicare law also requires the
Secretary to provide incentives for MACs to provide quality
service and to promote efficiency (Act, section
1874A(b)(1)(D)). In addition, the Secretary is required to
develop contract performance requirements for MAC duties and
standards for measuring MAC's performance in meeting those
requirements (Act, section 1874A(b)(3)). Moreover, in
developing standards for measuring MAC performance, the
Secretary is required to consult with stakeholders and to make
the performance standards publicly available.
MACRA required MACs to have an improper payment outreach
and education program that would provide outreach, education,
training, and technical assistance to providers and suppliers
within each contractor's geographic service area (Act, section
1874A(a)(4)).
CMS also requires all Medicare contractors to provide
outreach and education to providers and suppliers and provides
guidance to Medicare contractors on communications and
interactions with providers and suppliers in the Medicare
Contractor Beneficiary and Provider Communications Manual,
Chapter 6--Provider Customer Service Program (Rev. 31, 02-13-
2015). This manual identifies a number of Medicare contractor
requirements to provide education, outreach, and overall
support through the Provider Customer Service Program (PCSP).
CMS makes data available on the results of the PCSP on its
Contractor-Provider Customer Service Program website including
contractor performance data.
In July 2014, CMS announced the establishment of a Provider
Relations Coordinator. CMS indicated that the Provider
Relations Coordinator was intended to improve communications
between providers and CMS and to help increase program
transparency while offering more efficient resolutions to
providers affected by the review process. Providers were
instructed to raise broader concerns with the Provider
Relations Coordinator, but to continue to interact with MACs
and RAs on individual claim questions.
EXPLANATION OF PROVISION
The bill would require the Secretary to establish and
implement, no later than January 1, 2017, a system that takes
into account the denial rate as a percentage of claims audited
and final determination of appeals by type of issue (for
example, patient classification or medical necessity for
specific procedures) by which providers or suppliers with a low
error rate for claims subject to additional document requests
over a two-year period are exempt from audits by RAs and MACs
on a post-payment basis for one year unless there is evidence
of systematic gaming, fraud, abuse, or delays in the provision
of care.
The Secretary of HHS shall assess the frequency in which
decisions being made by the review entity contractors are
consistent with Medicare payment and coverage law, regulations
and program instruction (but taking into account geographical
variation that are a result of local coverage determinations).
The Secretary of HHS may use sampling to fulfill this
requirement. The results of the validation shall be posted to
the CMS website.
The bill would require the Secretary to adjust the number
of medical records a review entity can request from a provider
or supplier for the purposes of review based on the assessment
described above. This adjustment would be directly related to
the accuracy of the review entity's reviews. Contractors with
an accuracy rate of 95% or more may be eligible to request
additional medical records. Contractors with an accuracy rate
of less than 95% may be limited in their ability to request
medical records, according to a sliding scale established by
the Secretary.
EFFECTIVE DATE
The provision is effective upon enactment.
III. Budget Effects of the Bill
A. COMMITTEE ESTIMATES
In compliance with paragraph 11(a) of Rule XXVI of the
Standing Rules of the Senate, the following Congressional
Budget Office estimate is made concerning the estimated budget
effects of the revenue provisions of the ``Audit & Appeals
Fairness, Integrity, and Reforms in Medicare Act of 2015'' as
reported.
The bill is estimated to have the following effects on
federal budget receipts for fiscal years 2016-2025:
Summary
The bill would authorize the appropriation of $127 million
per year from the Medicare Hospital Insurance (HI) and
Supplemental Medical Insurance (SMI) Trust Funds (in amounts to
be determined at the Secretary HHS's discretion) beginning in
FY2016, providing $125 million to OMHA and $2 million to the
Departmental Appeals Board of HHS for purposes of conducting
reviews, hearings, and appeals. The funds appropriated would be
available until spent and would be in addition to any other
funds that may be available to OMHA and the Departmental
Appeals Board for the same purposes. Implementing the Audit &
Appeals Fairness, Integrity, and Reforms in Medicare Act of
2015 would cost $1.31 billion over the 2016-2025 period,
assuming appropriation of the specified amounts.
For this estimate, CBO assumes that the legislation will be
enacted near the beginning of fiscal year 2016 and that the
amounts specified will be appropriate in that year. Enacting
the Audit & Appeals Fairness, Integrity, and Reforms in
Medicare Act of 2015 would affect direct spending or revenues;
therefore, pay-as-you-go procedures apply. The bill would not
impose intergovernmental or private sector mandates as defined
in the Unfunded Mandates Reform Act and would impose no costs
on state, local, or tribal governments. The annual estimated
budgetary impact of the Audit & Appeals Fairness, Integrity,
and Reforms in Medicare Act of 2015 is shown in the table
above.
B. BUDGET AUTHORITY
Budget authority
In compliance with section 308(a)(1) of the Congressional
Budget and Impoundment Control Act of 1974 (``Budget Act''),\9\
the Committee states that the bill as reported involves
increased budget authority (see table in Part A., above).
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Tax expenditures
In compliance with section 308(a)(1) of the Budget Act, the
Committee states that the bill does not involve increased tax
expenditures.
C. CONSULTATION WITH CONGRESSIONAL BUDGET OFFICE
In accordance with section 403 of the Budget Act, the
Committee advises that the Congressional Budget Office has
submitted the preceding cost estimate on the bill.
IV. Votes of the Committee
In compliance with paragraph 7(b) of rule XXVI of the
Standing Rules of the Senate, the Committee states that, with a
majority present, the ``Audit & Appeals Fairness, Integrity,
and Reforms in Medicare Act of 2015'' or the ``AFIRM Act'' was
amended and ordered favorably reported on June 3, 2015 as
follows:
Final Passage of the Audit & Appeals Fairness, Integrity,
and Reforms in Medicare Act of 2015 or the AFIRM Act--approved
by voice vote.
V. Regulatory Impact and Other Matters
A. REGULATORY IMPACT
Pursuant to paragraph 11(b) of rule XXVI of the Standing
Rules of the Senate, the Committee makes the following
statement concerning the regulatory impact that might be
incurred in carrying out the provisions of the bill.
Impact on individuals and businesses, personal privacy and paperwork
The bill is not expected to impose additional
administrative requirements or regulatory burdens on
individuals. The bill is expected to reduce administrative
requirements and regulatory burdens on some businesses.
The provisions of the bill do not impact personal privacy.
B. UNFUNDED MANDATES STATEMENT
This information is provided in accordance with section 423
of the Unfunded Mandates Reform Act of 1995 (Pub. L. No. 104-
4).
The Committee has determined that the bill does not contain
any private sector mandates. The Committee has determined that
the bill contains no intergovernmental mandate.
VI. Changes in Existing Law Made by the Bill, as Reported
In the opinion of the Committee, it is necessary in order
to expedite the business of the Senate, to dispense with the
requirements of paragraph 12 of rule XXVI of the Standing Rules
of the Senate (relating to the showing of changes in existing
law made by the bill as reported by the Committee).
[all]