II 

118TH CONGRESS 

1ST SESSION S. 3503 

To direct the Secretary of Health and Human Services to revise certain 

regulations in relation to the Medicare shared savings program and 

other alternative payment arrangements to encourage participation in 

such program, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

DECEMBER 13, 2023 

Mr. WHITEHOUSE (for himself, Mr. BARRASSO, Mr. WELCH, Mr. TILLIS, Mr. 

CASSIDY, Mr. THUNE, and Mrs. BLACKBURN) introduced the following 

bill; which was read twice and referred to the Committee on Finance 

A BILL 

To direct the Secretary of Health and Human Services to 

revise certain regulations in relation to the Medicare 

shared savings program and other alternative payment 

arrangements to encourage participation in such program, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Value in Health Care 

5 Act of 2023’’. 

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1 SEC. 2. ENCOURAGING PARTICIPATION IN THE MEDICARE 

2 SHARED SAVINGS PROGRAM. 

3 (a) REMOVING BARRIERS TO SHARED SAVINGS PRO4 GRAM PARTICIPATION.—Prior to the beginning of the first 

5 performance year (as defined in section 425.20 of title 42, 

6 Code of Federal Regulations (or a successor regulation)) 

7 that begins at least 90 days after the date of enactment 

8 of this Act, the Secretary of Health and Human Services 

9 shall revise part 425 of title 42, Code of Federal Regula10 tions, or any successor regulation, to— 

11 (1) eliminate any distinction in requirements in 

12 such part between a low revenue ACO and a high 

13 revenue ACO (as such terms are defined in section 

14 425.20 of title 42, Code of Federal Regulations, or 

15 a successor regulation) and, with respect to such a 

16 low revenue ACO or high revenue ACO and except 

17 as otherwise modified in this Act, apply the require18 ments of such part as such requirements applied to 

19 low revenue ACOs on July 1, 2024, except that the 

20 Secretary of Health and Human Services may, if the 

21 Secretary determines appropriate, apply less strin22 gent requirements than those requirements that ap23 plied to low revenue ACOs as of such date; and 

24 (2) remove any provision requiring an account25 able care organization to assume responsibility for 

26 repayment of any shared losses or participate in a 

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1 two-sided risk model before the organization has 

2 participated for at least 3 years in any program sub3 ject to the provisions of part 425 of title 42, Code 

4 of Federal Regulations, or any successor regulation, 

5 provided that such an organization shall be allowed 

6 to elect to participate in such two-sided risk models 

7 or models requiring repayment of such losses. 

8 (b) FINANCIAL METHODOLOGY ENHANCEMENTS TO

9 PROMOTE SUCCESS OF SHARED SAVINGS PROGRAM.— 

10 Prior to the beginning of the first performance year (as 

11 defined for purposes of subsection (a)) that begins at least 

12 90 days after the date of enactment of this Act, the Sec13 retary shall— 

14 (1) ensure that any methodology used to estab15 lish, adjust, or update benchmark expenditures be 

16 developed and implemented in a clear and trans17 parent manner, including by making publicly avail18 able sufficient information and data to allow inter19 ested members of the public to replicate the method20 ology used by the Secretary and to evaluate the ac21 curacy of the Secretary’s benchmark expenditure 

22 calculations; 

23 (2) implement a process that allows ACOs to 

24 appeal the accuracy of benchmark expenditures in a 

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1 sure that any such appeal be heard within a 90-day 

2 period beginning on the date a request for hearing 

3 is filed; and 

4 (3) require that any regional contributions or 

5 expenditures (below the national level) used directly 

6 or indirectly to establish, update, or adjust bench7 mark expenditures be calculated in a manner that 

8 excludes the expenditure impact of ACOs in the ap9 plicable region, including any regional expenditures 

10 associated with Medicare fee-for-service beneficiaries 

11 assigned to such ACOs. 

12 (c) SHARED SAVINGS OPTION.—Prior to the begin13 ning of the first performance year (as defined for purposes 

14 of subsection (a)) that begins after the date of the enact15 ment of this Act, and notwithstanding any other provision 

16 of law, the Secretary of Health and Human Services shall 

17 establish a voluntary full-risk option under the Medicare 

18 Shared Savings Program (as described in section 1899 of 

19 the Social Security Act (42 U.S.C. 1395jjj)) under which 

20 the percent of shared savings paid to an ACO under sec21 tion 1899(d)(2) of the Social Security Act (42 U.S.C. 

22 1395jjj(d)(2)) shall be set at 100 percent, with the ACO 

23 bearing commensurate risk of any shared losses. 

24 (d) REPORT.—Not later than 90 days after the date 

25 of enactment of this Act, the Administrator of the Centers 

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1 for Medicare & Medicaid Services shall submit to the ap2 propriate committees of Congress a report on mechanisms 

3 that the agency can take to avoid penalizing ACOs for 

4 achieving cost savings and account for regional variations 

5 in spending in a manner that prevents arbitrary Medicare 

6 Shared Savings Program outcomes for ACOs. Such report 

7 shall include specific actions that the Centers for Medicare 

8 & Medicaid Services can take to develop and implement 

9 effective benchmarks and guardrails for any changes made 

10 to the agency’s benchmarking policies. 

11 SEC. 3. ADVANCED PAYMENT MODEL INCENTIVE, PARTICI12 PATION, AND THRESHOLD MODIFICATIONS. 

13 (a) IN GENERAL.—Section 1833(z) of the Social Se14 curity Act (42 U.S.C. 1395l(z)) is amended— 

15 (1) in paragraph (1)(A)— 

16 (A) by striking ‘‘with 2025’’ and inserting 

17 ‘‘with 2027’’; and 

18 (B) by inserting ‘‘, or, with respect to 

19 2026 and 2027, the scaled percentage amount 

20 (as defined in paragraph (2)(C)(vi))’’ after ‘‘3.5 

21 percent’’; 

22 (2) in paragraph (2)(C)— 

23 (A) in clause (i), by striking ‘‘75 percent’’ 

24 and inserting ‘‘the applicable percent (as de25 fined in clause (iv)) for such year’’; 

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1 (B) in clause (ii)(I)— 

2 (i) in the matter preceding item (aa), 

3 by striking ‘‘75 percent’’ and inserting 

4 ‘‘the applicable percent (as defined in 

5 clause (iv)) for such year’’; and 

6 (ii) in item (bb)— 

7 (I) by striking ‘‘and other than 

8 payments made under title XIX’’ and 

9 inserting ‘‘other than payments made 

10 under title XIX’’; and 

11 (II) by striking ‘‘State program 

12 under that title),’’ and inserting 

13 ‘‘State program under that title, and 

14 other than payments made by payers 

15 in which no payment or program 

16 meeting the requirements described in 

17 clause (iii)(II) is available from the 

18 payer for participation by the eligible 

19 professional)’’; and 

20 (C) by adding at the end the following new 

21 clauses: 

22 ‘‘(iv) APPLICABLE PERCENT DE23 FINED.—For purposes of clauses (i) and 

24 (ii), subject to clause (v), the term ‘appli25 cable percent’ means— 

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1 ‘‘(I) for each of 2026 and 2027, 

2 50 percent; and 

3 ‘‘(II) for 2028 and each subse4 quent year, a percent specified by the 

5 Secretary, but in no case less than the 

6 percent specified under this clause for 

7 the preceding year or more than the 

8 lesser of 75 percent or 5 percentage 

9 points higher than the percent speci10 fied under this clause for the pre11 ceding year. 

12 ‘‘(v) ALTERNATIVE APPLICABLE PER13 CENT.—Notwithstanding any other provi14 sion of law, the Secretary may define the 

15 applicable percent for purposes of clause 

16 (i) or (ii) of this subparagraph or a given 

17 alternative payment model (or for purposes 

18 of partial qualifying APM participants 

19 under section 1848(q)(1)(C)(iii)(III)) to 

20 mean a percentage amount that is lower 

21 than the amount (or range) otherwise spec22 ified in clause (iv) (or, as applicable, under 

23 section 1848(q)(1)(C)(iii)(III)), if the Sec24 retary determines there is good cause to 

25 support such alternative applicable percent, 

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1 including where the design of an alter2 native payment model warrants use of such 

3 alternative applicable percent. In no case 

4 shall the Secretary designate an alternative 

5 applicable percent that exceeds the max6 imum applicable percent specified in clause 

7 (iv) (or, as applicable, under section 

8 1848(q)(1)(C)(iii)(III)) for the applicable 

9 year. 

10 ‘‘(vi) SCALED PERCENTAGE

11 AMOUNT.—For purposes of paragraphs 

12 (1)(A) and (4)(B): 

13 ‘‘(I) IN GENERAL.—The term 

14 ‘scaled percentage amount’ means a 

15 progressively scaled percentage 

16 amount designated by the Secretary. 

17 Subject to subclause (II), the Sec18 retary shall determine an appropriate 

19 progressive percentage scale for dif20 ferent categories of eligible profes21 sionals based on programmatic inter22 ests in efficiency, equity, and align23 ment of appropriate incentives. 

24 ‘‘(II) MAXIMUM AMOUNT.— 

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1 ‘‘(aa) IN GENERAL.—The 

2 maximum scaled percentage 

3 amount shall be 5 percent and, 

4 subject to item (bb), such max5 imum amount shall apply to an 

6 eligible professional with respect 

7 to a year if the eligible profes8 sional meets or exceeds the 

9 threshold under clause (i) or (ii) 

10 with respect to such year (deter11 mined based on application of the 

12 applicable percent, as defined 

13 under clause (iv)). 

14 ‘‘(bb) CLARIFICATION.—In 

15 no case may an eligible profes16 sional who meets or exceeds the 

17 threshold under clause (i) or (ii) 

18 with respect to a year through 

19 application of an alternative ap20 plicable percent under clause (v) 

21 that is less than the applicable 

22 percent (as defined under clause 

23 (iv)) be eligible for the maximum 

24 scaled percentage amount under 

25 this clause.’’; and 

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1 (3) in paragraph (4)(B), by inserting ‘‘, or, 

2 with respect to 2026 and each subsequent year, the 

3 scaled percentage amount (as defined in paragraph 

4 (2)(C)(vi))’’ after ‘‘3.5 percent’’. 

5 (b) TECHNICAL ASSISTANCE.—The Secretary of 

6 Health and Human Services shall provide education and 

7 technical assistance to ACOs and other types of providers 

8 (as defined under section 414.1305 of title 42, Code of 

9 Federal Regulations (or a successor regulation)) that the 

10 Secretary determines to target or otherwise operate in 

11 rural or medically underserved areas or to involve material 

12 participation by small practice or safety net groups of pro13 viders of services and suppliers. Such education and tech14 nical assistance may include infrastructure support or ac15 cess to data analytics to support ACO implementation in 

16 such rural or medically underserved areas or to benefit 

17 small practice or safety net groups of providers of services 

18 and suppliers, or other groups of providers of services and 

19 suppliers deemed to require additional support, such as 

20 providers of services or suppliers that are new to APMs, 

21 including specialists. 

22 (c) PARTIAL QUALIFYING APM PARTICIPANT MODI23 FICATION.—Section 1848(q)(1)(C)(iii)(III) of the Social 

24 Security Act (42 U.S.C. 1395w–4(q)(1)(C)(iii)(III)) is 

25 amended— 

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1 (1) in item (aa), by striking ‘‘50 percent was 

2 instead a reference to 40 percent’’ and inserting 

3 ‘‘the applicable percent were instead a reference to 

4 the percent that is 10 percentage points less than 

5 the applicable percent’’; and 

6 (2) in item (bb)— 

7 (A) by striking ‘‘75 percent’’ and inserting 

8 ‘‘the applicable percent’’; and 

9 (B) by striking ‘‘50 percent’’ and inserting 

10 ‘‘the percent that is 10 percentage points less 

11 than the applicable percent’’. 

12 SEC. 4 STUDY ON ALTERNATIVE PAYMENT MODELS AND 

13 MEDICARE ADVANTAGE. 

14 Not later than 18 months after the date of enactment 

15 of this Act, the Comptroller General of the United States 

16 shall conduct a study and submit to the appropriate com17 mittees of Congress a report evaluating the benefits and 

18 flexibilities provided to support alternative payment mod19 els (as defined under section 414.1305 of title 42, Code 

20 of Federal Regulations (or a successor regulation)) and 

21 Medicare Advantage organizations (as defined in section 

22 1859(a)(1) of the Social Security Act (42 U.S.C. 1395w– 

23 28(a)(1))). The objective of such study and report shall 

24 be to better understand the effect of different policies 

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1 cial Security Act (42 U.S.C. 1395 et seq.) with respect 

2 to such models and organizations on different types of 

3 beneficiaries and participating providers, including spe4 cialty, safety net, small practice, and rural providers, with 

5 the goal of identifying areas to enhance alignment between 

6 such policies and benchmarks, including through mecha7 nisms that could facilitate greater alignment in such poli8 cies and benchmarks and to encourage the adoption of 

9 value-based arrangements across payers or that could oth10 erwise increase parity in the flexibilities available to alter11 native payment models and Medicare Advantage organiza12 tions under the Medicare program. 

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