S6216 CONGRESSIONAL RECORD — SENATE May 5, 1995

Because foreign counter-intelligence

investigations may not involve a

criminal prosecution, a grand jury subpoena may not be an option in these

cases.

This bill now also revises current

wiretap laws to provide authorization

for wiretaps in connection with any felony if the Department of Justice certifies that it is connected to foreign or

domestic terrorism, and it allows for

emergency wiretaps in terrorism investigations.

The bill also alters the standards to

obtain a so-called roving wiretap—targeted at a person moving from phone

to phone or using pay phones.

In addition, the bill allows use of the

military to investigate offenses involving chemical and biological weapons.

And it allows the Department of the

Treasury to promulgate regulations requiring explosives manufacturers to

use methods making the explosives

traceable, known as taggants.

While I believe many of the provisions now under consideration in this

bill are useful and desirable, I do share

some of the concerns about the bill.

Specifically, I want to examine closely the need for and the full scope of the

additional authority sought for law enforcement in wiretapping and in collecting records, particularly where domestic groups are targeted.

As I said in February, I am also concerned about the alien terrorist removal provisions, which would allow

secret evidence to be used to deport a

person.

Our judicial system generally requires that a defendant be given the

evidence to be used against him—so

that he can prepare a defense. Unseen,

unheard evidence simply cannot be defended against, and raises the possibility of erroneous decisions.

I also believe we should look closely

at proposals which would ban fundraising for organizations which the President designates as terrorist.

The first amendment rights of association and free speech are at the heart

of our system of government. While we

should not allow people to knowingly

support terrorism, we also must ensure

that legitimate political activities are

not curtailed.

We must examine these and other issues closely before acting on terrorism

legislation.

But I do believe we should act. Americans enjoy freedoms unlike those in

any other country on the planet. But

freedoms bring responsibilities.

Incidents like the Oklahoma City

bombing have no place in our free and

democratic society, which allows full

expression of all types of political

views through legitimate means. There

is simply no excuse for turning to violence in a society with open airwaves,

uncensored newspapers, and regular

and free elections of the peoples’ representatives.

By Mr. HARKIN:

S. 762. A bill to implement General

Accounting Office recommendations

regarding the use of commercial software to detect billing code abuse in

Medicare claims processing, and for

other purposes; to the Committee on

Finance.

THE MEDICARE BILLING ABUSE PREVENTON ACT

OF 1995

∑ Mr. HARKIN. Mr. President, I am introducing the Medicare Billing Abuse

Prevention Act to implement recommendations of the General Accounting Office concerning abusive and improper billing practices that are costing the American taxpayer and individual Medicare beneficiaries billions of

dollars. There is controversy over what

should be done concerning Medicare.

But, I am hopeful that we will all agree

that medical providers should receive

what they are entitled to and should

not receive payments based on improper billings.

Last year, I along with the chairman

and ranking member of the Budget

Committee asked the GAO to look at

how much Medicare loses because of its

inability to prevent and detect abusive

and inappropriate billings by health

care providers. We specifically asked

them what savings the taxpayers and

Medicare beneficiaries might realize if

Medicare was to use the commercially

available state of the art computer programs to detect and stop abusive payments.

GAO has done their usual excellent

work. The results of their review are

dramatic. Medicare’s system for detecting abuse is failing and it’s costing

American taxpayers and senior citizens

millions every day. Taxpayers and

those on Medicare could save roughly

$4 billion over the next 5 years if Medicare harnessed the power of the private

sector and used state of the art antiabuse equipment.

Although I believed we had a problem, the GAO has uncovered losses

from improper billings that are far

larger than I expected. They also suggested a straightforward solution that

will conservatively save the Medicare

trust fund about $640 million per year

and Medicare beneficiaries over $140

million a year in their out of pocket

costs. Those estimates are based on

four separate samples of 200,000 actual

filed claims each that were processed

with commercially available software

developed by four separate computer

companies that now provide the software to commercial users, primarily

insurance companies.

I was pleased to hear that the great

majority of medical care providers

billed the Government correctly. The

losses were the results of billings submitted by 8 percent of providers. I do

want to point out that all errors are

not purposeful. But, whatever the reason, the Medicare trust fund should

have the best protections against improper payments.

In a hearing held by the Subcommittee on Labor, Health and Human Services, Education and Related Agencies

today, I believe that a solid case was

made for immediate action. Losses are

mounting by about $2 million for every

day we wait.

Many in Congress are proposing dramatic cuts in Medicare and Medicaid to

pay for tax cuts and reduce the deficit.

They are suggesting that senior citizens and the disabled, most of whom

live on limited, fixed incomes, pay

more for Medicare. And they are suggesting dramatic cuts in payments to

doctors, hospitals, and other health

care providers—cuts that will either reduce health care access and quality of

care for older Americans, or simply be

shifted on to the millions of working

Americans who have private health insurance.

While Medicare for years led the

health care field in technology, today

it has been left in the dust. While most

of the Nation’s leading private health

insurers and managed care plans are

saving billions by using this state of

the art equipment, Medicare lags behind. In fact, many of the same private

health insurers that Medicare contracts with to process its claims use

this new technology on their private

sector business but can’t use the same

to bring American taxpayers and seniors Medicare savings. This is part of

the reason why Medicare’s costs are

rising faster than private sector health

care costs.

The GAO had four private companies

that have developed sophisticated computer technology to detect and stop

billing abuse run a representative sample of doctors bills Medicare had already checked and paid through their

systems. The private sector systems

found instance after instance where

Medicare, with its outdated computer

technology, paid abusive or inappropriate bills that should have been denied.

The most common form of billing

abuse identified was unbundling, where

a doctor performs a procedure and bills

Medicare not only for the full procedure, but also for components of the

procedure. For example, a doctor bills

Medicare $5,000 for gall bladder surgery, but also bills Medicare $1,000 for

the incision and closing the wound.

Medicare is paying twice for the same

service. Other examples of unbundling

abuses identified include: billing for

multiple visits to the same patient on

the same day; billing separately for injections and chemotherapy administration when those injections are simply a

component of the chemotherapy administration; and, billing for excessive

numbers of Pap smears for the same

woman on the same day.

Billing abuses that the commercial

computer systems would identify include mutually exclusive procedures,

the use of an inappropriate assistant at

surgery, duplicate billings, and global

fee period violations where one charge

might cover a physician’s services for

30 days after surgery and the doctor

separately charges for services provided during that time period.
May 5, 1995 CONGRESSIONAL RECORD — SENATE S6217

The GAO indicates that it would cost

around $20 million or less to install the

private sector technology in Medicare.

And they have clearly demonstrated

that such an investment would save

Medicare taxpayers and beneficiaries

over $3.9 billion in 5 years. So, for

every dollar we invest, taxpayers will

get a $200 return. I call that a bargain.

I want to reiterate: for every day we

fail to invest, taxpayers will lose about

$2 million. And more will be lost by individual Medicare patients, sometimes

thousands of dollars by a single individual. I call that a scandal.

The Billing Abuse Prevention Act

will do three things.

First, it will provide a definite time

when commercially available computer

systems shall be in actual use to catch

billing code abuses by all of the 32 Medicare contractors who examine Medicare billings so errors and abusive billing practices can be caught. HCFA has

been given 90 days from the date of enactment to set out the exact requirements under which the 32 Medicare

contractors shall have a computer

checking system in place. And, it requires that the contractors actually

have the system in use within 180 days

after enactment.

It is my hope and expectation that

this can be done more quickly than

that. HCFA should now begin the process to develop the criteria without

waiting for the legislation to pass.

With the full cooperation of the agency, I am hopeful that the HCFA implementing requirements could be ready

by the time the President signs the

bill. That will allow the contractors to

move more quickly as well.

Many of the 32 contractors are already using the commercially available

systems to review private insurance

claims. But, some modifications of the

systems will be needed to modify the

program to match HCFA billing practices. And, the contractors will want to

review all of the systems that are

available that meet HCFA’s criteria

and go through the appropriate procurement practices.

Second, the legislation provides that

the Secretary of Health and Human

Services may keep information about

the system confidential. If that is not

done, detailed information about the

system could be used, to some degree,

to get around the system’s safeguards.

The legislation also provides that the

proprietary information about the systems are not to be released. If it became available, the companies that

created it might lose a significant part

of their investment since other companies could acquire the technical details

of the systems. The Secretary is expected to release appropriate information about the system which is in the

public interest.

It is important to use commercially

available systems because we already

know they work and we can put them

into place relatively quickly with

minor modifications. We save time

which results in real savings and we

avoid what might be a large development cost if HCFA tried to create their

own system. Another advantage of

commercial systems is that they will

be continually improved as the private

development companies work to further improve their systems to acquire

a larger share of the private marketplace.

Third, the Secretary shall order a review of all of the existing regulations

and guidelines governing Medicare payment policies and billing code abuse to

see what modifications might be appropriate to maximize the benefits of the

computer checking systems and avoiding improper payments.

I urge that this legislation be rapidly

considered and passed.

f∑

ADDITIONAL COSPONSORS

S. 326

At the request of Mr. HATFIELD, the

name of the Senator from Vermont

[Mr. LEAHY] was added as a cosponsor

of S. 326, a bill to prohibit United

States military assistance and arms

transfers to foreign governments that

are undemocratic, do not adequately

protect human rights, are engaged in

acts of armed aggression, or are not

fully participating in the United Nations Register of Conventional Arms.

S. 440

At the request of Mr. WARNER, the

name of the Senator from Kansas [Mr.

DOLE] was added as a cosponsor of S.

440, a bill to amend title 23, United

States Code, to provide for the designation of the National Highway System,

and for other purposes.

S. 483

At the request of Mr. HATCH, the

name of the Senator from Wyoming

[Mr. SIMPSON] was added as a cosponsor

of S. 483, a bill to amend the provisions

of title 17, United States Code, with respect to the duration of copyright, and

for the other purposes.

S. 607

At the request of Mr. WARNER, the

name of the Senator from Virginia [Mr.

ROBB] was added as a cosponsor of S.

607, a bill to amend the Comprehensive

Environmental Response, Compensation, and Liability Act of 1980 to clarify the liability of certain recycling

transactions, and for other purposes.

S. 692

At the request of Mr. GREGG, the

name of the Senator from Vermont

[Mr. LEAHY] was added as a cosponsor

of S. 692, a bill to amend the Internal

Revenue Code of 1986 to preserve family-held forest lands, and for other purposes.

AMENDMENTS SUBMITTED

COMMONSENSE PRODUCT

LIABILITY REFORM ACT

COVERDELL (AND DOLE)

AMENDMENT NO. 690

Mr. COVERDELL (for himself and

Mr. DOLE) proposed an amendment to

the amendment No. 596, proposed by

Mr. GORTON, to the bill (H.R. 956) to establish legal standards and procedures

for product liability litigation, and for

other purposes; as follows:

In lieu of the matter proposed to be inserted, insert the following:

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘‘Product Liability Fairness Act of 1995’’.

TITLE I—PRODUCT LIABILITY

SEC. 101. DEFINITIONS.

For purposes of this Act, the following

definitions shall apply:

(1) CLAIMANT.—The term ‘‘claimant’’

means any person who bring a product liability action and any person on whose behalf

such an action is brought. If an action is

brought through or on behalf of—

(A) an estate, the term includes the decedent; or

(B) a minor or incompetent, the term includes the legal guardian of the minor or incompetent.

(2) CLAIMANT’S BENEFITS.—The term

‘‘claimant’s benefits’’ means the amount

paid to an employee as workers’ compensation benefits.

(3) CLEAR AND CONVINCING EVIDENCE.—

(A) IN GENERAL.—Subject to subparagraph

(A), the term ‘‘clear and convincing evidence’’ is that measure of degree of proof

that will produce in the mind of the trier of

fact a firm belief or conviction as to the

truth of the allegations sought to be established.

(B) DEGREE OF PROOF.—The degree of proof

required to satisfy the standard of clear and

convincing evidence shall be—

(i) greater than the degree of proof required to meet the standard of preponderance of the evidence; and

(ii) less than the degree of proof required

to meet the standard of proof beyond a reasonable doubt.

(4) COMMERCIAL LOSS.—The term ‘‘commercial loss’’ means any loss or damage to a

product itself, loss relating to a dispute over

its value or consequential economic loss the

recovery of which is governed by the Uniform Commercial Code or analogous State

commercial law, not including harm.

(5) DURABLE GOOD.—The term ‘‘durable

good’’ means any product, or any component

of any such product, which has a normal life

expectancy of 3 or more years or is of a character subject to allowance for depreciation

under the Internal Revenue Code of 1986, and

which is—

(A) used in a trade or business;

(B) held for the production of income; or

(C) sold or donated to a governmental or

private entity for the production of goods,

training, demonstration, or any other similar purpose.

(6) ECONOMIC LOSS.—The term ‘‘economic

loss’’ means any pecuniary loss resulting

from harm (including any medical expense

loss, work loss, replacement services loss,

loss due to death, burial costs, and loss of

business or employment opportunities), to

the extent that recovery for the loss is permitted under applicable State law.