II 

109TH CONGRESS 

2D SESSION S. 3920 

To amend part B of title XVIII of the Social Security Act to assure access 

to durable medical equipment under the Medicare Program. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 21, 2006 

Mr. HATCH (for himself and Mr. CONRAD) introduced the following bill; which 

was read twice and referred to the Committee on Finance 

A BILL 

To amend part B of title XVIII of the Social Security 

Act to assure access to durable medical equipment under 

the Medicare Program. 

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 ‘‘Medicare Durable 

5 Medical Equipment Access Act of 2005’’. 

6 SEC. 2. BENEFICIARY PROTECTIONS. 

7 (a) APPLICATION OF QUALITY STANDARDS.—Section 

8 1847(b)(2)(B) of the Social Security Act (42 U.S.C. 

9 1395w–3(b)(2)(B)) is amended to read as follows: 


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1 ‘‘(B) APPLICATION OF QUALITY STAND2 ARDS AND RECEIPT OF ADVICE FROM OVER3 SIGHT COMMITTEE.—The Secretary may not 

4 award any contracts under the competitive ac5 quisition program under this section unless— 

6 ‘‘(i) the quality standards have been 

7 implemented under section 1834(a)(20); 

8 and 

9 ‘‘(ii) the Secretary has received advice 

10 from the program oversight committee es11 tablished under subsection (c).’’. 

12 (b) REQUIRING USE OF EXEMPTIONS.—Section 

13 1847(a)(3) of such Act (42 U.S.C. 1395w–3(a)(3)) is 

14 amended by striking ‘‘may exempt’’ and inserting ‘‘shall 

15 exempt’’. 

16 (c) EXEMPTION OF SMALLER MSAS.—Section 

17 1847(a)(3)(A) of such Act (42 U.S.C. 1395w–3(a)(3)(A)) 

18 is amended by inserting ‘‘(including any metropolitan sta19 tistical area with a population of less than 500,000)’’ after 

20 ‘‘rural areas’’. 

21 (d) APPLICATION OF FEDERAL ADVISORY COM22 MITTEE ACT (FACA) TO PROGRAM ADVISORY AND OVER23 SIGHT COMMITTEE (PAOC).—Section 1847(c)(4) of such 

24 Act (42 U.S.C. 1395w–3(c)(4)) is amended to read as fol25 lows: 


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1 ‘‘(4) APPLICABILITY OF FACA.—The provisions 

2 of the Federal Advisory Committee Act (5 U.S.C. 

3 App.) shall apply to the Committee.’’. 

4 (e) EFFECTIVE DATE.—The amendments made by 

5 this section shall be effective as if included in the enact6 ment of the Medicare Prescription Drug, Improvement, 

7 and Modernization Act of 2003 (Public Law 108–173). 

8 SEC. 3. SMALL SUPPLIER PROTECTIONS. 

9 (a) QUALIFIED SUPPLIER PARTICIPATION.—Section 

10 1847(b) of the Social Security Act (42 U.S.C. 1395w– 

11 3(b)) is amended— 

12 (1) in paragraph (4)(A), by striking ‘‘The Sec13 retary may limit’’ and inserting ‘‘Subject to para14 graph (6)(D), the Secretary may limit’’; and 

15 (2) in paragraph (6)(D), by adding at the end 

16 the following: ‘‘Such appropriate steps shall include 

17 permitting suppliers that are classified as small busi18 nesses under the Small Business Act to continue to 

19 participate as suppliers at the selected award price 

20 so long as they submit bids at less than the fee 

21 schedule amount otherwise applicable to the items 

22 and they otherwise comply with applicable program 

23 requirements.’’. 


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1 (b) RESTORATION OF DUE PROCESS.—Section 

2 1847(b)(10) of such Act (42 U.S.C. 1395w–3(b)(10)) is 

3 amended— 

4 (1) by striking ‘‘NO ADMINISTRATIVE OR JUDI5 CIAL REVIEW’’ and inserting ‘‘RESTORATION OF AP6 PEAL RIGHTS’’; and 

7 (2) by striking ‘‘There shall be no administra8 tive or judicial review under section 1869, section 

9 1878, or otherwise of’’ and inserting ‘‘Administra10 tive and judicial review shall only be available under 

11 section 1869 (and not otherwise) of’’. 

12 (c) APPLICATION OF REQUIREMENT FOR SIGNIFI13 CANT SAVINGS.—Section 1847(a) of such Act (42 U.S.C. 

14 1395w–3(a)) is amended— 

15 (1) in paragraph (3)(B), by inserting ‘‘of at 

16 least 10 percent’’ after ‘‘significant savings’’; and 

17 (2) in paragraph (1), by adding at the end the 

18 following new subparagraph: 

19 ‘‘(D) REQUIREMENT FOR SIGNIFICANT

20 SAVINGS.—The Secretary shall not implement a 

21 program under this section with respect to an 

22 item or service unless the Secretary dem23 onstrates a probability of achieving significant 

24 savings of at least 10 percent, compared to the 


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1 fee schedule in effect on January 1, 2006, by 

2 including the item or service in the program.’’. 

3 (d) COMPARABILITY ANALYSIS.—Section 1834(a)(1) 

4 of such Act (42 U.S.C. 1395m(a)(1)) is amended— 

5 (1) in subparagraph (F), by inserting ‘‘subject 

6 to subparagraph (G),’’ after ‘‘2009,’’; and 

7 (2) by adding at the end the following new sub8 paragraphs: 

9 ‘‘(G) REQUIREMENT FOR COMPARABILITY

10 ANALYSIS BEFORE IMPLEMENTATION.—The 

11 Secretary may not implement subparagraph (F) 

12 with respect to the application of rates in an 

13 area that is not a competitive acquisition area 

14 under section 1847 unless the Secretary has 

15 completed and published in the Federal Reg16 ister a comparability analysis to ensure the ap17 plication is appropriate. The comparability 

18 analysis shall include at least an analysis of the 

19 relative costs of providing the particular items 

20 and services in the respective metropolitan sta21 tistical areas and an assessment of whether ap22 plication of the bid rate in an area that is not 

23 a competitive acquisition area would adversely 

24 impact beneficiary access to quality items and 

25 services. 


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1 ‘‘(H) APPLICATION OF COMPARABILITY

2 ANALYSIS REQUIREMENT TO CERTAIN OTHER

3 PART B ITEMS AND SERVICES.—Subparagraph 

4 (G) shall also apply to the implementation of 

5 section 1847(a) with respect to items described 

6 in paragraph (2)(B) or (2)(C) of such section 

7 that are furnished on or after January 1, 

8 2009.’’. 

9 (e) EFFECTIVE DATE.—The amendments made by 

10 this section shall be effective as if included in the enact11 ment of the Medicare Prescription Drug, Improvement, 

12 and Modernization Act of 2003 (Public Law 108–173). 

Æ 


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