[105th Congress Public Law 266]
[From the U.S. Government Printing Office]
<DOC>
[DOCID: f:publ266.105]
[[Page 111 STAT. 2363]]
Public Law 105-266
105th Congress
An Act
To amend chapter 89 of title 5, United States Code, to improve
administration of sanctions against unfit health care providers under
the Federal Employees Health Benefits Program, and for other
purposes. <<NOTE: Oct. 19, 1998 - [H.R. 1836]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, <<NOTE: Federal
Employees Health Care Protection Act of 1998.>>
SECTION 1. SHORT TITLE. <<NOTE: 5 USC 8901 note.>>
This Act may be cited as the ``Federal Employees Health Care
Protection Act of 1998''.
SEC. 2. DEBARMENT AND OTHER SANCTIONS.
(a) Amendments.--Section 8902a of title 5, United States Code, is
amended--
(1) in subsection (a)--
(A) in paragraph (1)--
(i) by striking ``and'' at the end of
subparagraph (B);
(ii) by striking the period at the end of
subparagraph (C) and inserting ``; and''; and
(iii) by adding at the end the following:
``(D) the term `should know' means that a person, with
respect to information, acts in deliberate ignorance of, or in
reckless disregard of, the truth or falsity of the information,
and no proof of specific intent to defraud is required;''; and
(B) in paragraph (2)(A), by striking ``subsection
(b) or (c)'' and inserting ``subsection (b), (c), or
(d)'';
(2) in subsection (b)--
(A) by striking ``The Office of Personnel Management
may bar'' and inserting ``The Office of Personnel
Management shall bar''; and
(B) by amending paragraph (5) to read as follows:
``(5) Any provider that is currently debarred, suspended, or
otherwise excluded from any procurement or nonprocurement
activity (within the meaning of section 2455 of the Federal
Acquisition Streamlining Act of 1994).'';
(3) by redesignating subsections (c) through (i) as
subsections (d) through ( j), respectively, and by inserting
after subsection (b) the following:
``(c) The Office may bar the following providers of health care
services from participating in the program under this chapter:
``(1) Any provider--
``(A) whose license to provide health care services
or supplies has been revoked, suspended, restricted, or
not renewed, by a State licensing authority for reasons
relating
[[Page 111 STAT. 2364]]
to the provider's professional competence, professional
performance, or financial integrity; or
``(B) that surrendered such a license while a formal
disciplinary proceeding was pending before such an
authority, if the proceeding concerned the provider's
professional competence, professional performance, or
financial integrity.
``(2) Any provider that is an entity directly or indirectly
owned, or with a control interest of 5 percent or more held, by
an individual who has been convicted of any offense described in
subsection (b), against whom a civil monetary penalty has been
assessed under subsection (d), or who has been debarred from
participation under this chapter.
``(3) Any individual who directly or indirectly owns or has
a control interest in a sanctioned entity and who knows or
should know of the action constituting the basis for the
entity's conviction of any offense described in subsection (b),
assessment with a civil monetary penalty under subsection (d),
or debarment from participation under this chapter.
``(4) Any provider that the Office determines, in connection
with claims presented under this chapter, has charged for health
care services or supplies in an amount substantially in excess
of such provider's customary charge for such services or
supplies (unless the Office finds there is good cause for such
charge), or charged for health care services or supplies which
are substantially in excess of the needs of the covered
individual or which are of a quality that fails to meet
professionally recognized standards for such services or
supplies.
``(5) Any provider that the Office determines has committed
acts described in subsection (d).
Any determination under paragraph (4) relating to whether a charge for
health care services or supplies is substantially in excess of the needs
of the covered individual shall be made by trained reviewers based on
written medical protocols developed by physicians. In the event such a
determination cannot be made based on such protocols, a physician in an
appropriate specialty shall be consulted.'';
(4) in subsection (d) (as so redesignated by paragraph (3))
by amending paragraph (1) to read as follows:
``(1) in connection with claims presented under this
chapter, that a provider has charged for a health care service
or supply which the provider knows or should have known
involves--
``(A) an item or service not provided as claimed;
``(B) charges in violation of applicable charge
limitations under section 8904(b); or
``(C) an item or service furnished during a period
in which the provider was debarred from participation
under this chapter pursuant to a determination by the
Office under this section, other than as permitted under
subsection (g)(2)(B);'';
(5) in subsection (f ) (as so redesignated by paragraph (3))
by inserting after ``under this section'' the first place it
appears the following: ``(where such debarment is not
mandatory)'';
(6) in subsection (g) (as so redesignated by paragraph
(3))--
(A) by striking ``(g)(1)'' and all that follows
through the end of paragraph (1) and inserting the
following:
[[Page 111 STAT. 2365]]
``(g)(1)(A) <<NOTE: Regulations.>> Except as provided in
subparagraph (B), debarment of a provider under subsection (b) or (c)
shall be effective at such time and upon such reasonable notice to such
provider, and to carriers and covered individuals, as shall be specified
in regulations prescribed by the Office. Any such provider that is
debarred from participation may request a hearing in accordance with
subsection (h)(1).
``(B) Unless the Office determines that the health or safety of
individuals receiving health care services warrants an earlier effective
date, the Office shall not make a determination adverse to a provider
under subsection (c)(5) or (d) until such provider has been given
reasonable notice and an opportunity for the determination to be made
after a hearing as provided in accordance with subsection (h)(1).'';
(B) in paragraph (3)--
(i) by inserting ``of debarment'' after
``notice''; and
(ii) by adding at the end the following: ``In
the case of a debarment under paragraph (1), (2),
(3), or (4) of subsection (b), the minimum period
of debarment shall not be less than 3 years,
except as provided in paragraph (4)(B)(ii).'';
(C) in paragraph (4)(B)(i)(I) by striking
``subsection (b) or (c)'' and inserting ``subsection
(b), (c), or (d)''; and
(D) by striking paragraph (6);
(7) in subsection (h) (as so redesignated by paragraph (3))
by striking ``(h)(1)'' and all that follows through the end of
paragraph (2) and inserting the following:
``(h)(1) Any provider of health care services or supplies that is
the subject of an adverse determination by the Office under this section
shall be entitled to reasonable notice and an opportunity to request a
hearing of record, and to judicial review as provided in this subsection
after the Office renders a final decision. The Office shall grant a
request for a hearing upon a showing that due process rights have not
previously been afforded with respect to any finding of fact which is
relied upon as a cause for an adverse determination under this section.
Such hearing shall be conducted without regard to subchapter II of
chapter 5 and chapter 7 of this title by a hearing officer who shall be
designated by the Director of the Office and who shall not otherwise
have been involved in the adverse determination being
appealed. <<NOTE: Regulation.>> A request for a hearing under this
subsection shall be filed within such period and in accordance with such
procedures as the Office shall prescribe by regulation.
``(2) Any provider adversely affected by a final decision under
paragraph (1) made after a hearing to which such provider was a party
may seek review of such decision in the United States District Court for
the District of Columbia or for the district in which the plaintiff
resides or has his or her principal place of business by filing a notice
of appeal in such court within 60 days after the date the decision is
issued, and by simultaneously sending copies of such notice by certified
mail to the Director of the Office and to the Attorney
General. <<NOTE: Records.>> In answer to the appeal, the Director of the
Office shall promptly file in such court a certified copy of the
transcript of the record, if the Office conducted a hearing, and other
evidence upon which the findings and decision complained of are
based. <<NOTE: Courts.>> The court shall have power to enter, upon the
pleadings and evidence of record, a judgment affirming, modifying, or
[[Page 111 STAT. 2366]]
setting aside, in whole or in part, the decision of the Office, with or
without remanding the case for a rehearing. The district court shall not
set aside or remand the decision of the Office unless there is not
substantial evidence on the record, taken as whole, to support the
findings by the Office of a cause for action under this section or
unless action taken by the Office constitutes an abuse of discretion.'';
and
(8) in subsection (i) (as so redesignated by paragraph
(3))--
(A) by striking ``subsection (c)'' and inserting
``subsection (d)''; and
(B) by adding at the end the following: ``The amount
of a penalty or assessment as finally determined by the
Office, or other amount the Office may agree to in
compromise, may be deducted from any sum then or later
owing by the United States to the party against whom the
penalty or assessment has been levied.''.
(b) Effective Date.-- <<NOTE: 5 USC 8902a note.>>
(1) In general.--Except as provided in paragraph (2), the
amendments made by this section shall take effect on the date of
the enactment of this Act.
(2) <<NOTE: Applicability.>> Exceptions.--(A) Paragraphs
(2), (3), and (5) of section 8902a(c) of title 5, United States
Code, as amended by subsection (a)(3), shall apply only to the
extent that the misconduct which is the basis for debarment
under paragraph (2), (3), or (5), as applicable, occurs after
the date of the enactment of this Act.
(B) Paragraph (1)(B) of section 8902a(d) of title 5, United
States Code, as amended by subsection (a)(4), shall apply only
with respect to charges which violate section 8904(b) of such
title for items or services furnished after the date of the
enactment of this Act.
(C) Paragraph (3) of section 8902a(g) of title 5, United
States Code, as amended by subsection (a)(6)(B), shall apply
only with respect to debarments based on convictions occurring
after the date of the enactment of this Act.
SEC. 3. MISCELLANEOUS AMENDMENTS RELATING TO THE HEALTH BENEFITS PROGRAM
FOR FEDERAL EMPLOYEES.
(a) Definition of a Carrier.--Paragraph (7) of section 8901 of title
5, United States Code, is amended by striking ``organization;'' and
inserting ``organization and an association of organizations or other
entities described in this paragraph sponsoring a health benefits
plan;''.
(b) Service Benefit Plan.--Paragraph (1) of section 8903 of title 5,
United States Code, is amended by striking ``plan,'' and inserting
``plan, which may be underwritten by participating affiliates licensed
in any number of States,''.
(c) Preemption.--Section 8902(m) of title 5, United States Code, is
amended by striking ``(m)(1)'' and all that follows through the end of
paragraph (1) and inserting the following:
``(m)(1) The terms of any contract under this chapter which relate
to the nature, provision, or extent of coverage or benefits (including
payments with respect to benefits) shall supersede and preempt any State
or local law, or any regulation issued thereunder, which relates to
health insurance or plans.''.
[[Page 111 STAT. 2367]]
SEC. 4. <<NOTE: 5 USC 8901 note.>> CONTINUED HEALTH INSURANCE COVERAGE
FOR CERTAIN INDIVIDUALS.
(a) Enrollment in Chapter 89 Plan.--For purposes of chapter 89 of
title 5, United States Code, any period of enrollment--
(1) in a health benefits plan administered by the Federal
Deposit Insurance Corporation before the termination of such
plan on or before January 2, 1999; or
(2) subject to subsection (c), in a health benefits plan
(not under chapter 89 of such title) with respect to which the
eligibility of any employees or retired employees of the Board
of Governors of the Federal Reserve System terminates on or
before January 2, 1999,
shall be deemed to be a period of enrollment in a health benefits plan
under chapter 89 of such title.
(b) Continued Coverage.--(1) Subject to subsection (c), any
individual who, on or before January 2, 1999, is enrolled in a health
benefits plan described in subsection (a)(1) or (2) may enroll in an
approved health benefits plan under chapter 89 of title 5, United States
Code, either as an individual or for self and family, if, after taking
into account the provisions of subsection (a), such individual--
(A) meets the requirements of such chapter for eligibility
to become so enrolled as an employee, annuitant, or former
spouse (within the meaning of such chapter); or
(B) would meet those requirements if, to the extent such
requirements involve either retirement system under such title
5, such individual satisfies similar requirements or provisions
of the Retirement Plan for Employees of the Federal Reserve
System.
Any <<NOTE: Guidelines.>> determination under subparagraph (B) shall be
made under guidelines which the Office of Personnel Management shall
establish in consultation with the Board of Governors of the Federal
Reserve System.
(2) Subject to subsection (c), any individual who, on or before
January 2, 1999, is entitled to continued coverage under a health
benefits plan described in subsection (a)(1) or (2) shall be deemed to
be entitled to continued coverage under section 8905a of title 5, United
States Code, but only for the same remaining period as would have been
allowable under the health benefits plan in which such individual was
enrolled on or before January 2, 1999, if--
(A) such individual had remained enrolled in such plan; and
(B) such plan did not terminate, or the eligibility of such
individual with respect to such plan did not terminate, as
described in subsection (a).
(3) Subject to subsection (c), any individual (other than an
individual under paragraph (2)) who, on or before January 2, 1999, is
covered under a health benefits plan described in subsection (a)(1) or
(2) as an unmarried dependent child, but who does not then qualify for
coverage under chapter 89 of title 5, United States Code, as a family
member (within the meaning of such chapter) shall be deemed to be
entitled to continued coverage under section 8905a of such title, to the
same extent and in the same manner as if such individual had, on or
before January 2, 1999, ceased to meet the requirements for being
considered an unmarried dependent child of an enrollee under such
chapter.
[[Page 111 STAT. 2368]]
(4) Coverage under chapter 89 of title 5, United States Code,
pursuant to an enrollment under this section shall become effective on
January 3, 1999 or such earlier date as established by the Office of
Personnel Management after consultation with the Federal Deposit
Insurance Corporation or the Board of Governors of the Federal Reserve
System, as appropriate.
(c) Eligibility for FEHBP Limited to Individuals Losing Eligibility
Under Former Health Plan.--Nothing in subsection (a)(2) or any paragraph
of subsection (b) (to the extent such paragraph relates to the plan
described in subsection (a)(2)) shall be considered to apply with
respect to any individual whose eligibility for coverage under such plan
does not involuntarily terminate on or before January 2, 1999.
(d) Transfers to the Employees Health Benefits Fund.--The Federal
Deposit Insurance Corporation and the Board of Governors of the Federal
Reserve System shall transfer to the Employees Health Benefits Fund
under section 8909 of title 5, United States Code, amounts determined by
the Director of the Office of Personnel Management, after consultation
with the Federal Deposit Insurance Corporation and the Board of
Governors of the Federal Reserve System, to be necessary to reimburse
the Fund for the cost of providing benefits under this section not
otherwise paid for by the individuals covered by this section. The
amounts so transferred shall be held in the Fund and used by the Office
of Personnel Management in addition to amounts available under section
8906(g)(1) of such title.
(e) Administration and Regulations.--The Office of Personnel
Management--
(1) shall administer the provisions of this section to
provide for--
(A) a period of notice and open enrollment for
individuals affected by this section; and
(B) no lapse of health coverage for individuals who
enroll in a health benefits plan under chapter 89 of
title 5, United States Code, in accordance with this
section; and
(2) may prescribe regulations to implement this section.
SEC. 5. FULL DISCLOSURE IN HEALTH PLAN CONTRACTS. <<NOTE: 5 USC 8902
note.>>
The Office of Personnel Management shall encourage carriers offering
health benefits plans described by section 8903 or section 8903a of
title 5, United States Code, with respect to contractual arrangements
made by such carriers with any person for purposes of obtaining
discounts from providers for health care services or supplies furnished
to individuals enrolled in such plan, to seek assurance that the
conditions for such discounts are fully disclosed to the providers who
grant them.
SEC. 6. PROVISIONS RELATING TO CERTAIN PLANS THAT HAVE
DISCONTINUED THEIR PARTICIPATION IN FEHBP.
(a) Authority to Readmit.--
(1) In general.--Chapter 89 of title 5, United States Code,
is amended by inserting after section 8903a the following:
``Sec. 8903b. Authority to readmit an employee organization plan
``(a) In the event that a plan described by section 8903(3) or 8903a
is discontinued under this chapter (other than in the circumstance
described in section 8909(d)), that discontinuation
[[Page 111 STAT. 2369]]
shall be disregarded, for purposes of any determination as to that
plan's eligibility to be considered an approved plan under this chapter,
but only for purposes of any contract year later than the third contract
year beginning after such plan is so discontinued.
``(b) A contract for a plan approved under this section shall
require the carrier--
``(1) to demonstrate experience in service delivery within a
managed care system (including provider networks) throughout the
United States; and
``(2) if the carrier involved would not otherwise be subject
to the requirement set forth in section 8903a(c)(1), to satisfy
such requirement.''.
(2) Conforming amendment.--The analysis for chapter 89 of
title 5, United States Code, is amended by inserting after the
item relating to section 8903a the following:
``8903b. Authority to readmit an employee organization plan.''.
(3) Applicability.-- <<NOTE: 5 USC 8903b note.>>
(A) In general.--The amendments made by this
subsection shall apply as of the date of the enactment
of this Act, including with respect to any plan which
has been discontinued as of such date.
(B) Transition rule.--For purposes of applying
section 8903b(a) of title 5, United States Code (as
amended by this subsection) with respect to any plan
seeking to be readmitted for purposes of any contract
year beginning before January 1, 2000, such section
shall be applied by substituting ``second contract
year'' for ``third contract year''.
(b) Treatment of the Contingency Reserve of a Discontinued Plan.--
(1) In general.--Subsection (e) of section 8909 of title 5,
United States Code, is amended by striking ``(e)'' and inserting
``(e)(1)'' and by adding at the end the following:
``(2) Any crediting required under paragraph (1) pursuant to the
discontinuation of any plan under this chapter shall be completed by the
end of the second contract year beginning after such plan is so
discontinued.
``(3) <<NOTE: Regulations. Applicability.>> The Office shall
prescribe regulations in accordance with which this subsection shall be
applied in the case of any plan which is discontinued before being
credited with the full amount to which it would otherwise be entitled
based on the discontinuation of any other plan.''.
(2) <<NOTE: 5 USC 8909 note.>> Transition rule.--In the case
of any amounts remaining as of the date of the enactment of this
Act in the contingency reserve of a discontinued plan, such
amounts shall be disposed of in accordance with section 8909(e)
of title 5, United States Code, as amended by this subsection,
by--
(A) the deadline set forth in section 8909(e) of
such title (as so amended); or
(B) if later, the end of the 6-month period
beginning on such date of enactment.
SEC. 7. MAXIMUM PHYSICIANS COMPARABILITY ALLOWANCE PAYABLE.
(a) In General.--Paragraph (2) of section 5948(a) of title 5, United
States Code, is amended by striking ``$20,000'' and inserting
``$30,000''.
(b) <<NOTE: 5 USC 5948 note.>> Authority to Modify Existing
Agreements.--
[[Page 111 STAT. 2370]]
(1) In general.--Any service agreement under section 5948 of
title 5, United States Code, which is in effect on the date of
the enactment of this Act may, with respect to any period of
service remaining in such agreement, be modified based on the
amendment made by subsection (a).
(2) Limitation.--A modification taking effect under this
subsection in any year shall not cause an allowance to be
increased to a rate which, if applied throughout such year,
would cause the limitation under section 5948(a)(2) of such
title (as amended by this section), or any other applicable
limitation, to be exceeded.
(c) <<NOTE: 5 USC 5948 note.>> Rule of Construction.--Nothing in
this section shall be considered to authorize additional or supplemental
appropriations for the fiscal year in which occurs the date of the
enactment of this Act.
SEC. 8. CLARIFICATION RELATING TO SECTION 8902(k).
Section 8902(k) of title 5, United States Code, is amended--
(1) by redesignating paragraph (2) as paragraph (3); and
(2) by inserting after paragraph (1) the following:
``(2) Nothing in this subsection shall be considered to preclude a
health benefits plan from providing direct access or direct payment or
reimbursement to a provider in a health care practice or profession
other than a practice or profession listed in paragraph (1), if such
provider is licensed or certified as such under Federal or State law.''.
Approved October 19, 1998.
LEGISLATIVE HISTORY--H.R. 1836:
---------------------------------------------------------------------------
HOUSE REPORTS: No. 105-374 (Comm. on Government Reform and Oversight).
SENATE REPORTS: No. 105-257 (Comm. on Governmental Affairs).
CONGRESSIONAL RECORD:
Vol. 143 (1997):
Nov. 4, considered and passed House.
Vol. 144 (1998):
Sept. 30, considered and passed
Senate, amended.
Oct. 5, House concurred in Senate
amendments.
<all>