180
‘‘(f) CONSTRUCTION.—Nothing in this section or section
1893(g) shall be construed as providing for disclosure by a
medicare contractor of information that would compromise
pending law enforcement activities or reveal findings of law en-
forcement-related audits.
‘‘(g) DEFINITIONS.—For purposes of this section, the
term ‘medicare contractor’ includes the following:
‘‘(1) A medicare administrative contractor with a con-
tract under section 1874A, including a fiscal intermediary
with a contract under section 1816 and a carrier with a
contract under section 1842.
‘‘(2) An eligible entity with a contract under section
1893.
Such term does not include, with respect to activities of a spe-
cific provider of services or supplier an entity that has no au-
thority under this title or title IX with respect to such activities
and such provider of services or supplier.’’.
(2) EFFECTIVE
DATE.—The amendment made by
paragraph (1) shall take effect on the date of the enact-
ment of this Act.
SEC. 822. SMALL PROVIDER TECHNICAL ASSISTANCE
DEMONSTRATION PROGRAM.
(a) ESTABLISHMENT.—
(1) IN
GENERAL.—The Secretary shall establish a
demonstration program (in this section referred to as the
‘‘demonstration program’’) under which technical assist-
ance described in paragraph (2) is made available, upon re-
quest and on a voluntary basis, to small providers of serv-
ices or suppliers in order to improve compliance with the
applicable requirements of the programs under medicare
program under title XVIII of the Social Security Act (in-
cluding provisions of title XI of such Act insofar as they
relate to such title and are not administered by the Office
of the Inspector General of the Department of Health and
Human Services).
(2) FORMS OF TECHNICAL ASSISTANCE.—The tech-
nical assistance described in this paragraph is—
181
(A) evaluation and recommendations regarding
billing and related systems; and
(B) information and assistance regarding policies
and procedures under the medicare program, including
coding and reimbursement.
(3) SMALL PROVIDERS OF SERVICES OR SUPPLIERS.—
In this section, the term ‘‘small providers of services or
suppliers’’ means—
(A) a provider of services with fewer than 25 full-
time-equivalent employees; or
(B) a supplier with fewer than 10 full-time-equiva-
lent employees.
(b) QUALIFICATION OF CONTRACTORS.—In conducting the
demonstration program, the Secretary shall enter into contracts
with qualified organizations (such as peer review organizations
or entities described in section 1889(g)(2) of the Social Secu-
rity Act, as inserted by section 5(f)(1)) with appropriate exper-
tise with billing systems of the full range of providers of serv-
ices and suppliers to provide the technical assistance. In award-
ing such contracts, the Secretary shall consider any prior inves-
tigations of the entity’s work by the Inspector General of De-
partment of Health and Human Services or the Comptroller
General of the United States.
(c) DESCRIPTION OF TECHNICAL ASSISTANCE.—The tech-
nical assistance provided under the demonstration program
shall include a direct and in-person examination of billing sys-
tems and internal controls of small providers of services or sup-
pliers to determine program compliance and to suggest more
efficient or effective means of achieving such compliance.
(d) AVOIDANCE OF RECOVERY ACTIONS FOR PROBLEMS
IDENTIFIED
AS CORRECTED.—The Secretary shall provide
that, absent evidence of fraud and notwithstanding any other
provision of law, any errors found in a compliance review for
a small provider of services or supplier that participates in the
demonstration program shall not be subject to recovery action
if the technical assistance personnel under the program deter-
mine that—
182
(1) the problem that is the subject of the compliance
review has been corrected to their satisfaction within 30
days of the date of the visit by such personnel to the small
provider of services or supplier; and
(2) such problem remains corrected for such period as
is appropriate.
The previous sentence applies only to claims filed as part of the
demonstration program and lasts only for the duration of such
program and only as long as the small provider of services or
supplier is a participant in such program.
(e) GAO EVALUATION.—Not later than 2 years after the
date of the date the demonstration program is first imple-
mented, the Comptroller General, in consultation with the In-
spector General of the Department of Health and Human Serv-
ices, shall conduct an evaluation of the demonstration program.
The evaluation shall include a determination of whether claims
error rates are reduced for small providers of services or sup-
pliers who participated in the program and the extent of im-
proper payments made as a result of the demonstration pro-
gram. The Comptroller General shall submit a report to the
Secretary and the Congress on such evaluation and shall in-
clude in such report recommendations regarding the continu-
ation or extension of the demonstration program.
(f) FINANCIAL PARTICIPATION BY PROVIDERS.—The pro-
vision of technical assistance to a small provider of services or
supplier under the demonstration program is conditioned upon
the small provider of services or supplier paying an amount es-
timated (and disclosed in advance of a provider’s or supplier’s
participation in the program) to be equal to 25 percent of the
cost of the technical assistance.
(g) AUTHORIZATION OF APPROPRIATIONS.—There are au-
thorized to be appropriated to the Secretary (in appropriate
part from the Federal Hospital Insurance Trust Fund and the
Federal Supplementary Medical Insurance Trust Fund) to
carry out the demonstration program—
(1) for fiscal year 2004, $1,000,000, and
(2) for fiscal year 2005, $6,000,000.
183
SEC. 823. MEDICARE PROVIDER OMBUDSMAN; MEDI-
CARE BENEFICIARY OMBUDSMAN.
(a) MEDICARE PROVIDER OMBUDSMAN.—Section 1868
(42 U.S.C. 1395ee) is amended—
(1) by adding at the end of the heading the following:
‘‘; MEDICARE PROVIDER OMBUDSMAN’’;
(2) by inserting ‘‘PRACTICING PHYSICIANS ADVISORY
COUNCIL.—(1)’’ after ‘‘(a)’’;
(3) in paragraph (1), as so redesignated under para-
graph (2), by striking ‘‘in this section’’ and inserting ‘‘in
this subsection’’;
(4) by redesignating subsections (b) and (c) as para-
graphs (2) and (3), respectively; and
(5) by adding at the end the following new subsection:
‘‘(b) MEDICARE PROVIDER OMBUDSMAN.—The Secretary
shall appoint within the Department of Health and Human
Services a Medicare Provider Ombudsman. The Ombudsman
shall—
‘‘(1) provide assistance, on a confidential basis, to pro-
viders of services and suppliers with respect to complaints,
grievances, and requests for information concerning the
programs under this title (including provisions of title XI
insofar as they relate to this title and are not administered
by the Office of the Inspector General of the Department
of Health and Human Services) and in the resolution of
unclear or conflicting guidance given by the Secretary and
medicare contractors to such providers of services and sup-
pliers regarding such programs and provisions and require-
ments under this title and such provisions; and
‘‘(2) submit recommendations to the Secretary for im-
provement in the administration of this title and such pro-
visions, including—
‘‘(A) recommendations to respond to recurring
patterns of confusion in this title and such provisions
(including recommendations regarding suspending im-
position of sanctions where there is widespread confu-
sion in program administration), and
184
‘‘(B) recommendations to provide for an appro-
priate and consistent response (including not providing
for audits) in cases of self-identified overpayments by
providers of services and suppliers.
The Ombudsman shall not serve as an advocate for any in-
creases in payments or new coverage of services, but may iden-
tify issues and problems in payment or coverage policies.’’.
(b) MEDICARE BENEFICIARY OMBUDSMAN.—Title XVIII,
as amended by sections 105 and 701, is amended by inserting
after section 1808 the following new section:
‘‘MEDICARE BENEFICIARY OMBUDSMAN
‘‘SEC. 1809. (a) IN GENERAL.—The Secretary shall ap-
point within the Department of Health and Human Services a
Medicare Beneficiary Ombudsman who shall have expertise and
experience in the fields of health care and education of (and
assistance to) individuals entitled to benefits under this title.
‘‘(b) DUTIES.—The Medicare Beneficiary Ombudsman
shall—
‘‘(1) receive complaints, grievances, and requests for
information submitted by individuals entitled to benefits
under part A or enrolled under part B, or both, with re-
spect to any aspect of the medicare program;
‘‘(2) provide assistance with respect to complaints,
grievances, and requests referred to in paragraph (1),
including—
‘‘(A) assistance in collecting relevant information
for such individuals, to seek an appeal of a decision or
determination made by a fiscal intermediary, carrier,
Medicare+Choice organization, or the Secretary; and
‘‘(B) assistance to such individuals with any prob-
lems 
arising 
from 
disenrollment 
from 
a
Medicare+Choice plan under part C; and
‘‘(3) submit annual reports to Congress and the Sec-
retary that describe the activities of the Office and that in-
clude such recommendations for improvement in the admin-
istration of this title as the Ombudsman determines appro-
priate.
185
The Ombudsman shall not serve as an advocate for any in-
creases in payments or new coverage of services, but may iden-
tify issues and problems in payment or coverage policies.
‘‘(c) WORKING WITH HEALTH INSURANCE COUNSELING
PROGRAMS.—To the extent possible, the Ombudsman shall
work with health insurance counseling programs (receiving
funding under section 4360 of Omnibus Budget Reconciliation
Act of 1990) to facilitate the provision of information to indi-
viduals entitled to benefits under part A or enrolled under part
B, or both regarding Medicare+Choice plans and changes to
those plans. Nothing in this subsection shall preclude further
collaboration between the Ombudsman and such programs.’’.
(c) DEADLINE FOR APPOINTMENT.—The Secretary shall
appoint the Medicare Provider Ombudsman and the Medicare
Beneficiary Ombudsman, under the amendments made by sub-
sections (a) and (b), respectively, by not later than 1 year after
the date of the enactment of this Act.
(d) FUNDING.—There are authorized to be appropriated to
the Secretary (in appropriate part from the Federal Hospital
Insurance Trust Fund and the Federal Supplementary Medical
Insurance Trust Fund) to carry out the provisions of sub-
section (b) of section 1868 of the Social Security Act (relating
to the Medicare Provider Ombudsman), as added by subsection
(a)(5) and section 1809 of such Act (relating to the Medicare
Beneficiary Ombudsman), as added by subsection (b), such
sums as are necessary for fiscal year 2003 and each succeeding
fiscal year.
(e) USE
OF CENTRAL, TOLL-FREE NUMBER
(1-800-
MEDICARE).—
(1) PHONE TRIAGE SYSTEM; LISTING IN MEDICARE
HANDBOOK INSTEAD OF OTHER TOLL-FREE NUMBERS.—
Section 1804(b) (42 U.S.C. 1395b–2(b)) is amended by
adding at the end the following: ‘‘The Secretary shall pro-
vide, through the toll-free number 1-800-MEDICARE, for
a means by which individuals seeking information about, or
assistance with, such programs who phone such toll-free
number are transferred (without charge) to appropriate en-
186
tities for the provision of such information or assistance.
Such toll-free number shall be the toll-free number listed
for general information and assistance in the annual notice
under subsection (a) instead of the listing of numbers of
individual contractors.’’.
(2) MONITORING ACCURACY.—
(A) STUDY.—The Comptroller General of the
United States shall conduct a study to monitor the ac-
curacy and consistency of information provided to indi-
viduals entitled to benefits under part A or enrolled
under part B, or both, through the toll-free number 1-
800-MEDICARE, including an assessment of whether
the information provided is sufficient to answer ques-
tions of such individuals. In conducting the study, the
Comptroller General shall examine the education and
training of the individuals providing information
through such number.
(B) REPORT.—Not later than 1 year after the
date of the enactment of this Act, the Comptroller Gen-
eral shall submit to Congress a report on the study
conducted under subparagraph (A).
SEC. 824. BENEFICIARY OUTREACH DEMONSTRATION
PROGRAM.
(a) IN GENERAL.—The Secretary shall establish a dem-
onstration program (in this section referred to as the ‘‘dem-
onstration program’’) under which medicare specialists em-
ployed by the Department of Health and Human Services pro-
vide advice and assistance to individuals entitled to benefits
under part A of title XVIII of the Social Security Act, or en-
rolled under part B of such title, or both, regarding the medi-
care program at the location of existing local offices of the So-
cial Security Administration.
(b) LOCATIONS.—
(1) IN GENERAL.—The demonstration program shall
be conducted in at least 6 offices or areas. Subject to para-
graph (2), in selecting such offices and areas, the Secretary
187
shall provide preference for offices with a high volume of
visits by individuals referred to in subsection (a).
(2) ASSISTANCE
FOR
RURAL
BENEFICIARIES.—The
Secretary shall provide for the selection of at least 2 rural
areas to participate in the demonstration program. In con-
ducting the demonstration program in such rural areas, the
Secretary shall provide for medicare specialists to travel
among local offices in a rural area on a scheduled basis.
(c) DURATION.—The demonstration program shall be con-
ducted over a 3-year period.
(d) EVALUATION AND REPORT.—
(1) EVALUATION.—The Secretary shall provide for an
evaluation of the demonstration program. Such evaluation
shall include an analysis of—
(A) utilization of, and satisfaction of those individ-
uals referred to in subsection (a) with, the assistance
provided under the program; and
(B) the cost-effectiveness of providing beneficiary
assistance through out-stationing medicare specialists
at local offices of the Social Security Administration.
(2) REPORT.—The Secretary shall submit to Congress
a report on such evaluation and shall include in such report
recommendations regarding the feasibility of permanently
out-stationing medicare specialists at local offices of the So-
cial Security Administration.
Subtitle D—Appeals and Recovery
SEC. 831. TRANSFER OF RESPONSIBILITY FOR MEDI-
CARE APPEALS.
(a) TRANSITION PLAN.—
(1) IN GENERAL.—Not later than October 1, 2003,
the Commissioner of Social Security and the Secretary
shall develop and transmit to Congress and the Comptroller
General of the United States a plan under which the func-
tions of administrative law judges responsible for hearing
cases under title XVIII of the Social Security Act (and re-
lated provisions in title XI of such Act) are transferred
from the responsibility of the Commissioner and the Social
188
Security Administration to the Secretary and the Depart-
ment of Health and Human Services.
(2) GAO EVALUATION.—The Comptroller General of
the United States shall evaluate the plan and, not later
than the date that is 6 months after the date on which the
plan is received by the Comptroller General, shall submit
to Congress a report on such evaluation.
(b) TRANSFER OF ADJUDICATION AUTHORITY.—
(1) IN GENERAL.—Not earlier than July 1, 2004, and
not later than October 1, 2004, the Commissioner of Social
Security and the Secretary shall implement the transition
plan under subsection (a) and transfer the administrative
law judge functions described in such subsection from the
Social Security Administration to the Secretary.
(2) ASSURING INDEPENDENCE OF JUDGES.—The Sec-
retary shall assure the independence of administrative law
judges performing the administrative law judge functions
transferred under paragraph (1) from the Centers for
Medicare & Medicaid Services and its contractors.
(3) GEOGRAPHIC DISTRIBUTION.—The Secretary shall
provide for an appropriate geographic distribution of ad-
ministrative law judges performing the administrative law
judge functions transferred under paragraph (1) through-
out the United States to ensure timely access to such
judges.
(4) HIRING AUTHORITY.—Subject to the amounts pro-
vided in advance in appropriations Act, the Secretary shall
have authority to hire administrative law judges to hear
such cases, giving priority to those judges with prior experi-
ence in handling medicare appeals and in a manner con-
sistent with paragraph (3), and to hire support staff for
such judges.
(5) FINANCING.—Amounts payable under law to the
Commissioner for administrative law judges performing the
administrative law judge functions transferred under para-
graph (1) from the Federal Hospital Insurance Trust Fund
and the Federal Supplementary Medical Insurance Trust
189
Fund shall become payable to the Secretary for the func-
tions so transferred.
(6) SHARED RESOURCES.—The Secretary shall enter
into such arrangements with the Commissioner as may be
appropriate with respect to transferred functions of admin-
istrative law judges to share office space, support staff, and
other resources, with appropriate reimbursement from the
Trust Funds described in paragraph (5).
(c) INCREASED FINANCIAL SUPPORT.—In addition to any
amounts otherwise appropriated, to ensure timely action on ap-
peals before administrative law judges and the Departmental
Appeals Board consistent with section 1869 of the Social Secu-
rity Act (as amended by section 521 of BIPA, 114 Stat.
2763A–534), there are authorized to be appropriated (in appro-
priate part from the Federal Hospital Insurance Trust Fund
and the Federal Supplementary Medical Insurance Trust
Fund) to the Secretary such sums as are necessary for fiscal
year 2004 and each subsequent fiscal year to—
(1) increase the number of administrative law judges
(and their staffs) under subsection (b)(4);
(2) improve education and training opportunities for
administrative law judges (and their staffs); and
(3) increase the staff of the Departmental Appeals
Board.
(d) CONFORMING AMENDMENT.—Section 1869(f)(2)(A)(i)
(42 U.S.C. 1395ff(f)(2)(A)(i)), as added by section 522(a) of
BIPA (114 Stat. 2763A–543), is amended by striking ‘‘of the
Social Security Administration’’.
SEC. 832. PROCESS FOR EXPEDITED ACCESS TO REVIEW.
(a) EXPEDITED ACCESS TO JUDICIAL REVIEW.—Section
1869(b) (42 U.S.C. 1395ff(b)) as amended by BIPA, is
amended—
(1) in paragraph (1)(A), by inserting ‘‘, subject to
paragraph (2),’’ before ‘‘to judicial review of the Sec-
retary’s final decision’’;
(2) in paragraph (1)(F)—
(A) by striking clause (ii);
190
(B) by striking ‘‘PROCEEDING’’ and all that follows
through ‘‘DETERMINATION’’ and inserting ‘‘DETER-
MINATIONS AND RECONSIDERATIONS’’; and
(C) by redesignating subclauses (I) and (II) as
clauses (i) and (ii) and by moving the indentation of
such subclauses (and the matter that follows) 2 ems to
the left; and
(3) by adding at the end the following new paragraph:
‘‘(2) EXPEDITED ACCESS TO JUDICIAL REVIEW.—
‘‘(A) IN GENERAL.—The Secretary shall establish
a process under which a provider of services or supplier
that furnishes an item or service or an individual enti-
tled to benefits under part A or enrolled under part B,
or both, who has filed an appeal under paragraph (1)
may obtain access to judicial review when a review
panel (described in subparagraph (D)), on its own mo-
tion or at the request of the appellant, determines that
no entity in the administrative appeals process has the
authority to decide the question of law or regulation
relevant to the matters in controversy and that there
is no material issue of fact in dispute. The appellant
may make such request only once with respect to a
question of law or regulation in a case of an appeal.
‘‘(B) PROMPT DETERMINATIONS.—If, after or co-
incident with appropriately filing a request for an ad-
ministrative hearing, the appellant requests a deter-
mination by the appropriate review panel that no re-
view panel has the authority to decide the question of
law or regulations relevant to the matters in con-
troversy and that there is no material issue of fact in
dispute and if such request is accompanied by the doc-
uments and materials as the appropriate review panel
shall require for purposes of making such determina-
tion, such review panel shall make a determination on
the request in writing within 60 days after the date
such review panel receives the request and such accom-
panying documents and materials. Such a determina-
191
tion by such review panel shall be considered a final de-
cision and not subject to review by the Secretary.
‘‘(C) ACCESS TO JUDICIAL REVIEW.—
‘‘(i) IN GENERAL.—If the appropriate review
panel—
‘‘(I) determines that there are no material
issues of fact in dispute and that the only issue
is one of law or regulation that no review panel
has the authority to decide; or
‘‘(II) fails to make such determination
within the period provided under subparagraph
(B);
then the appellant may bring a civil action as de-
scribed in this subparagraph.
‘‘(ii) DEADLINE
FOR
FILING.—Such action
shall be filed, in the case described in—
‘‘(I) clause (i)(I), within 60 days of date
of the determination described in such subpara-
graph; or
‘‘(II) clause (i)(II), within 60 days of the
end of the period provided under subparagraph
(B) for the determination.
‘‘(iii) VENUE.—Such action shall be brought
in the district court of the United States for the ju-
dicial district in which the appellant is located (or,
in the case of an action brought jointly by more
than one applicant, the judicial district in which
the greatest number of applicants are located) or in
the district court for the District of Columbia.
‘‘(iv) 
INTEREST
ON
AMOUNTS
IN
CON-
TROVERSY.—Where a provider of services or sup-
plier seeks judicial review pursuant to this para-
graph, the amount in controversy shall be subject
to annual interest beginning on the first day of the
first month beginning after the 60-day period as
determined pursuant to clause (ii) and equal to the
rate of interest on obligations issued for purchase
192
by the Federal Hospital Insurance Trust Fund and
by the Federal Supplementary Medical Insurance
Trust Fund for the month in which the civil action
authorized under this paragraph is commenced, to
be awarded by the reviewing court in favor of the
prevailing party. No interest awarded pursuant to
the preceding sentence shall be deemed income or
cost for the purposes of determining reimbursement
due providers of services or suppliers under this
Act.
‘‘(D) REVIEW PANELS.—For purposes of this sub-
section, a ‘review panel’ is a panel consisting of 3 mem-
bers (who shall be administrative law judges, members
of the Departmental Appeals Board, or qualified indi-
viduals associated with a qualified independent con-
tractor (as defined in subsection (c)(2)) or with another
independent entity) designated by the Secretary for
purposes of making determinations under this para-
graph.’’.
(b) APPLICATION TO PROVIDER AGREEMENT DETERMINA-
TIONS.—Section 1866(h)(1) (42 U.S.C. 1395cc(h)(1)) is
amended—
(1) by inserting ‘‘(A)’’ after ‘‘(h)(1)’’; and
(2) by adding at the end the following new subpara-
graph:
‘‘(B) An institution or agency described in subparagraph
(A) that has filed for a hearing under subparagraph (A) shall
have expedited access to judicial review under this subpara-
graph in the same manner as providers of services, suppliers,
and individuals entitled to benefits under part A or enrolled
under part B, or both, may obtain expedited access to judicial
review under the process established under section 1869(b)(2).
Nothing in this subparagraph shall be construed to affect the
application of any remedy imposed under section 1819 during
the pendency of an appeal under this subparagraph.’’.
(c) EFFECTIVE DATE.—The amendments made by this
section shall apply to appeals filed on or after October 1, 2003.
193
(d) EXPEDITED REVIEW OF CERTAIN PROVIDER AGREE-
MENT DETERMINATIONS.—
(1) TERMINATION AND CERTAIN OTHER IMMEDIATE
REMEDIES.—The Secretary shall develop and implement a
process to expedite proceedings under sections 1866(h) of
the Social Security Act (42 U.S.C. 1395cc(h)) in which the
remedy of termination of participation, or a remedy de-
scribed in clause (i) or (iii) of section 1819(h)(2)(B) of
such Act (42 U.S.C. 1395i–3(h)(2)(B)) which is applied on
an immediate basis, has been imposed. Under such process
priority shall be provided in cases of termination.
(2) INCREASED FINANCIAL SUPPORT.—In addition to
any amounts otherwise appropriated, to reduce by 50 per-
cent the average time for administrative determinations on
appeals under section 1866(h) of the Social Security Act
(42 U.S.C. 1395cc(h)), there are authorized to be appro-
priated (in appropriate part from the Federal Hospital In-
surance Trust Fund and the Federal Supplementary Med-
ical Insurance Trust Fund) to the Secretary such addi-
tional sums for fiscal year 2004 and each subsequent fiscal
year as may be necessary. The purposes for which such
amounts are available include increasing the number of ad-
ministrative law judges (and their staffs) and the appellate
level staff at the Departmental Appeals Board of the De-
partment of Health and Human Services and educating
such judges and staffs on long-term care issues.
SEC. 833. REVISIONS TO MEDICARE APPEALS PROCESS.
(a) REQUIRING FULL AND EARLY PRESENTATION OF EVI-
DENCE.—
(1) IN
GENERAL.—Section 1869(b) (42 U.S.C.
1395ff(b)), as amended by BIPA and as amended by sec-
tion 832(a), is further amended by adding at the end the
following new paragraph:
‘‘(3) REQUIRING FULL AND EARLY PRESENTATION OF
EVIDENCE BY PROVIDERS.—A provider of services or sup-
plier may not introduce evidence in any appeal under this
section that was not presented at the reconsideration con-
194
ducted by the qualified independent contractor under sub-
section (c), unless there is good cause which precluded the
introduction of such evidence at or before that reconsider-
ation.’’.
(2) EFFECTIVE
DATE.—The amendment made by
paragraph (1) shall take effect on October 1, 2003.
(b) USE
OF PATIENTS’ MEDICAL RECORDS.—Section
1869(c)(3)(B)(i) (42 U.S.C. 1395ff(c)(3)(B)(i)), as amended
by BIPA, is amended by inserting ‘‘(including the medical
records of the individual involved)’’ after ‘‘clinical experience’’.
(c) NOTICE REQUIREMENTS FOR MEDICARE APPEALS.—
(1) INITIAL
DETERMINATIONS
AND
REDETERMINA-
TIONS.—Section 1869(a) (42 U.S.C. 1395ff(a)), as amend-
ed by BIPA, is amended by adding at the end the following
new paragraph:
‘‘(4) REQUIREMENTS OF NOTICE OF DETERMINATIONS
AND
REDETERMINATIONS.—A written notice of a deter-
mination on an initial determination or on a redetermina-
tion, insofar as such determination or redetermination re-
sults in a denial of a claim for benefits, shall include—
‘‘(A) the specific reasons for the determination,
including—
‘‘(i) upon request, the provision of the policy,
manual, or regulation used in making the deter-
mination; and
‘‘(ii) as appropriate in the case of a redeter-
mination, a summary of the clinical or scientific
evidence used in making the determination;
‘‘(B) the procedures for obtaining additional infor-
mation concerning the determination or redetermina-
tion; and
‘‘(C) notification of the right to seek a redeter-
mination or otherwise appeal the determination and in-
structions on how to initiate such a redetermination or
appeal under this section.
The written notice on a redetermination shall be provided
in printed form and written in a manner calculated to be
196
spect to’’ and all that follows through ‘‘and relevant poli-
cies’’.
(d) QUALIFIED INDEPENDENT CONTRACTORS.—
(1) ELIGIBILITY REQUIREMENTS OF QUALIFIED INDE-
PENDENT CONTRACTORS.—Section 1869(c)(3) (42 U.S.C.
1395ff(c)(3)), as amended by BIPA, is amended—
(A) in subparagraph (A), by striking ‘‘sufficient
training and expertise in medical science and legal mat-
ters’’ and inserting ‘‘sufficient medical, legal, and other
expertise (including knowledge of the program under
this title) and sufficient staffing’’; and
(B) by adding at the end the following new sub-
paragraph:
‘‘(K) INDEPENDENCE REQUIREMENTS.—
‘‘(i) IN GENERAL.—Subject to clause (ii), a
qualified independent contractor shall not conduct
any activities in a case unless the entity—
‘‘(I) is not a related party (as defined in
subsection (g)(5));
‘‘(II) does not have a material familial, fi-
nancial, or professional relationship with such a
party in relation to such case; and
‘‘(III) does not otherwise have a conflict of
interest with such a party.
‘‘(ii) EXCEPTION
FOR
REASONABLE
COM-
PENSATION.—Nothing in clause (i) shall be con-
strued to prohibit receipt by a qualified inde-
pendent contractor of compensation from the Sec-
retary for the conduct of activities under this sec-
tion if the compensation is provided consistent with
clause (iii).
‘‘(iii) LIMITATIONS
ON
ENTITY
COMPENSA-
TION.—Compensation provided by the Secretary to
a qualified independent contractor in connection
with reviews under this section shall not be contin-
gent on any decision rendered by the contractor or
by any reviewing professional.’’.
197
(2) ELIGIBILITY REQUIREMENTS FOR REVIEWERS.—
Section 1869 (42 U.S.C. 1395ff), as amended by BIPA, is
amended—
(A) by amending subsection (c)(3)(D) to read as
follows:
‘‘(D) QUALIFICATIONS FOR REVIEWERS.—The re-
quirements of subsection (g) shall be met (relating to
qualifications of reviewing professionals).’’; and
(B) by adding at the end the following new sub-
section:
‘‘(g) QUALIFICATIONS OF REVIEWERS.—
‘‘(1) IN GENERAL.—In reviewing determinations under
this section, a qualified independent contractor shall assure
that—
‘‘(A) each individual conducting a review shall
meet the qualifications of paragraph (2);
‘‘(B) compensation provided by the contractor to
each such reviewer is consistent with paragraph (3);
and
‘‘(C) in the case of a review by a panel described
in subsection (c)(3)(B) composed of physicians or other
health care professionals (each in this subsection re-
ferred to as a ‘reviewing professional’), each reviewing
professional meets the qualifications described in para-
graph (4) and, where a claim is regarding the fur-
nishing of treatment by a physician (allopathic or os-
teopathic) or the provision of items or services by a
physician (allopathic or osteopathic), each reviewing
professional shall be a physician (allopathic or osteo-
pathic).
‘‘(2) INDEPENDENCE.—
‘‘(A) IN GENERAL.—Subject to subparagraph (B),
each individual conducting a review in a case shall—
‘‘(i) not be a related party (as defined in para-
graph (5));
198
‘‘(ii) not have a material familial, financial, or
professional relationship with such a party in the
case under review; and
‘‘(iii) not otherwise have a conflict of interest
with such a party.
‘‘(B) EXCEPTION.—Nothing in subparagraph (A)
shall be construed to—
‘‘(i) prohibit an individual, solely on the basis
of a participation agreement with a fiscal inter-
mediary, carrier, or other contractor, from serving
as a reviewing professional if—
‘‘(I) the individual is not involved in the
provision of items or services in the case under
review;
‘‘(II) the fact of such an agreement is dis-
closed to the Secretary and the individual enti-
tled to benefits under part A or enrolled under
part B, or both, (or authorized representative)
and neither party objects; and
‘‘(III) the individual is not an employee of
the intermediary, carrier, or contractor and
does not provide services exclusively or pri-
marily to or on behalf of such intermediary,
carrier, or contractor;
‘‘(ii) prohibit an individual who has staff privi-
leges at the institution where the treatment in-
volved takes place from serving as a reviewer mere-
ly on the basis of having such staff privileges if the
existence of such privileges is disclosed to the Sec-
retary and such individual (or authorized represent-
ative), and neither party objects; or
‘‘(iii) prohibit receipt of compensation by a re-
viewing professional from a contractor if the com-
pensation is provided consistent with paragraph
(3).
For purposes of this paragraph, the term ‘participation
agreement’ means an agreement relating to the provi-
199
sion of health care services by the individual and does
not include the provision of services as a reviewer
under this subsection.
‘‘(3) LIMITATIONS
ON
REVIEWER
COMPENSATION.—
Compensation provided by a qualified independent con-
tractor to a reviewer in connection with a review under this
section shall not be contingent on the decision rendered by
the reviewer.
‘‘(4) LICENSURE
AND
EXPERTISE.—Each reviewing
professional shall be—
‘‘(A) a physician (allopathic or osteopathic) who is
appropriately credentialed or licensed in one or more
States to deliver health care services and has medical
expertise in the field of practice that is appropriate for
the items or services at issue; or
‘‘(B) a health care professional who is legally au-
thorized in one or more States (in accordance with
State law or the State regulatory mechanism provided
by State law) to furnish the health care items or serv-
ices at issue and has medical expertise in the field of
practice that is appropriate for such items or services.
‘‘(5) RELATED PARTY DEFINED.—For purposes of this
section, the term ‘related party’ means, with respect to a
case under this title involving a specific individual entitled
to benefits under part A or enrolled under part B, or both,
any of the following:
‘‘(A) The Secretary, the medicare administrative
contractor involved, or any fiduciary, officer, director,
or employee of the Department of Health and Human
Services, or of such contractor.
‘‘(B) The individual (or authorized representative).
‘‘(C) The health care professional that provides
the items or services involved in the case.
‘‘(D) The institution at which the items or services
(or treatment) involved in the case are provided.
200
‘‘(E) The manufacturer of any drug or other item
that is included in the items or services involved in the
case.
‘‘(F) Any other party determined under any regu-
lations to have a substantial interest in the case in-
volved.’’.
(3) EFFECTIVE
DATE.—The amendments made by
paragraphs (1) and (2) shall be effective as if included in
the enactment of the respective provisions of subtitle C of
title V of BIPA, (114 Stat. 2763A–534).
(4) TRANSITION.—In applying section 1869(g) of the
Social Security Act (as added by paragraph (2)), any ref-
erence to a medicare administrative contractor shall be
deemed to include a reference to a fiscal intermediary
under section 1816 of the Social Security Act (42 U.S.C.
1395h) and a carrier under section 1842 of such Act (42
U.S.C. 1395u).
SEC. 834. PREPAYMENT REVIEW.
(a) IN GENERAL.—Section 1874A, as added by section
811(a)(1) and as amended by sections 812(b), 821(b)(1), and
831(c)(1), is further amended by adding at the end the fol-
lowing new subsection:
‘‘(h) CONDUCT OF PREPAYMENT REVIEW.—
‘‘(1) CONDUCT OF RANDOM PREPAYMENT REVIEW.—
‘‘(A) IN
GENERAL.—A medicare administrative
contractor may conduct random prepayment review
only to develop a contractor-wide or program-wide
claims payment error rates or under such additional
circumstances as may be provided under regulations,
developed in consultation with providers of services and
suppliers.
‘‘(B) USE OF STANDARD PROTOCOLS WHEN CON-
DUCTING
PREPAYMENT
REVIEWS.—When a medicare
administrative contractor conducts a random prepay-
ment review, the contractor may conduct such review
only in accordance with a standard protocol for random
prepayment audits developed by the Secretary.
201
‘‘(C) CONSTRUCTION.—Nothing in this paragraph
shall be construed as preventing the denial of payments
for claims actually reviewed under a random prepay-
ment review.
‘‘(D) RANDOM PREPAYMENT REVIEW.—For pur-
poses of this subsection, the term ‘random prepayment
review’ means a demand for the production of records
or documentation absent cause with respect to a claim.
‘‘(2) LIMITATIONS ON NON-RANDOM PREPAYMENT RE-
VIEW.—
‘‘(A) LIMITATIONS ON INITIATION OF NON-RAN-
DOM PREPAYMENT REVIEW.—A medicare administra-
tive contractor may not initiate non-random prepay-
ment review of a provider of services or supplier based
on the initial identification by that provider of services
or supplier of an improper billing practice unless there
is a likelihood of sustained or high level of payment
error (as defined in subsection (i)(3)(A)).
‘‘(B) TERMINATION
OF
NON-RANDOM
PREPAY-
MENT REVIEW.—The Secretary shall issue regulations
relating to the termination, including termination
dates, of non-random prepayment review. Such regula-
tions may vary such a termination date based upon the
differences in the circumstances triggering prepayment
review.’’.
(b) EFFECTIVE DATE.—
(1) IN GENERAL.—Except as provided in this sub-
section, the amendment made by subsection (a) shall take
effect 1 year after the date of the enactment of this Act.
(2) DEADLINE FOR PROMULGATION OF CERTAIN REG-
ULATIONS.—The Secretary shall first issue regulations
under section 1874A(h) of the Social Security Act, as
added by subsection (a), by not later than 1 year after the
date of the enactment of this Act.
(3) APPLICATION OF STANDARD PROTOCOLS FOR RAN-
DOM
PREPAYMENT
REVIEW.—Section 1874A(h)(1)(B) of
the Social Security Act, as added by subsection (a), shall
202
apply to random prepayment reviews conducted on or after
such date (not later than 1 year after the date of the enact-
ment of this Act) as the Secretary shall specify.
(c) APPLICATION TO FISCAL INTERMEDIARIES AND CAR-
RIERS.—The provisions of section 1874A(h) of the Social Secu-
rity Act, as added by subsection (a), shall apply to each fiscal
intermediary under section 1816 of the Social Security Act (42
U.S.C. 1395h) and each carrier under section 1842 of such Act
(42 U.S.C. 1395u) in the same manner as they apply to medi-
care administrative contractors under such provisions.
SEC. 835. RECOVERY OF OVERPAYMENTS.
(a) IN GENERAL.—Section 1893 (42 U.S.C. 1395ddd) is
amended by adding at the end the following new subsection:
‘‘(f) RECOVERY OF OVERPAYMENTS.—
‘‘(1) USE OF REPAYMENT PLANS.—
‘‘(A) IN GENERAL.—If the repayment, within 30
days by a provider of services or supplier, of an over-
payment under this title would constitute a hardship
(as defined in subparagraph (B)), subject to subpara-
graph (C), upon request of the provider of services or
supplier the Secretary shall enter into a plan with the
provider of services or supplier for the repayment
(through offset or otherwise) of such overpayment over
a period of at least 6 months but not longer than 3
years (or not longer than 5 years in the case of extreme
hardship, as determined by the Secretary). Interest
shall accrue on the balance through the period of re-
payment. Such plan shall meet terms and conditions
determined to be appropriate by the Secretary.
‘‘(B) HARDSHIP.—
‘‘(i) IN GENERAL.—For purposes of subpara-
graph (A), the repayment of an overpayment (or
overpayments) within 30 days is deemed to con-
stitute a hardship if—
‘‘(I) in the case of a provider of services
that files cost reports, the aggregate amount of
the overpayments exceeds 10 percent of the
203
amount paid under this title to the provider of
services for the cost reporting period covered by
the most recently submitted cost report; or
‘‘(II) in the case of another provider of
services or supplier, the aggregate amount of
the overpayments exceeds 10 percent of the
amount paid under this title to the provider of
services or supplier for the previous calendar
year.
‘‘(ii) RULE OF APPLICATION.—The Secretary
shall establish rules for the application of this sub-
paragraph in the case of a provider of services or
supplier that was not paid under this title during
the previous year or was paid under this title only
during a portion of that year.
‘‘(iii) TREATMENT
OF
PREVIOUS
OVERPAY-
MENTS.—If a provider of services or supplier has
entered into a repayment plan under subparagraph
(A) with respect to a specific overpayment amount,
such payment amount under the repayment plan
shall not be taken into account under clause (i)
with respect to subsequent overpayment amounts.
‘‘(C) EXCEPTIONS.—Subparagraph (A) shall not
apply if—
‘‘(i) the Secretary has reason to suspect that
the provider of services or supplier may file for
bankruptcy or otherwise cease to do business or
discontinue participation in the program under this
title; or
‘‘(ii) there is an indication of fraud or abuse
committed against the program.
‘‘(D) IMMEDIATE COLLECTION IF VIOLATION OF
REPAYMENT PLAN.—If a provider of services or sup-
plier fails to make a payment in accordance with a re-
payment plan under this paragraph, the Secretary may
immediately seek to offset or otherwise recover the
204
total balance outstanding (including applicable interest)
under the repayment plan.
‘‘(E) RELATION TO NO FAULT PROVISION.—Noth-
ing in this paragraph shall be construed as affecting
the application of section 1870(c) (relating to no ad-
justment in the cases of certain overpayments).
‘‘(2) LIMITATION ON RECOUPMENT.—
‘‘(A) IN GENERAL.—In the case of a provider of
services or supplier that is determined to have received
an overpayment under this title and that seeks a recon-
sideration by a qualified independent contractor on
such determination under section 1869(b)(1), the Sec-
retary may not take any action (or authorize any other
person, including any medicare contractor, as defined
in subparagraph (C) to recoup the overpayment until
the date the decision on the reconsideration has been
rendered. If the provisions of section 1869(b)(1) (pro-
viding for such a reconsideration by a qualified inde-
pendent contractor) are not in effect, in applying the
previous sentence any reference to such a reconsider-
ation shall be treated as a reference to a redetermina-
tion by the fiscal intermediary or carrier involved.
‘‘(B) COLLECTION
WITH
INTEREST.—Insofar as
the determination on such appeal is against the pro-
vider of services or supplier, interest on the overpay-
ment shall accrue on and after the date of the original
notice of overpayment. Insofar as such determination
against the provider of services or supplier is later re-
versed, the Secretary shall provide for repayment of the
amount recouped plus interest at the same rate as
would apply under the previous sentence for the period
in which the amount was recouped.
‘‘(C) MEDICARE
CONTRACTOR
DEFINED.—For
purposes of this subsection, the term ‘medicare con-
tractor’ has the meaning given such term in section
1889(g).
205
‘‘(3) LIMITATION
ON
USE
OF
EXTRAPOLATION.—A
medicare contractor may not use extrapolation to determine
overpayment amounts to be recovered by recoupment, off-
set, or otherwise unless—
‘‘(A) there is a sustained or high level of payment
error (as defined by the Secretary by regulation); or
‘‘(B) documented educational intervention has
failed to correct the payment error (as determined by
the Secretary).
‘‘(4) PROVISION OF SUPPORTING DOCUMENTATION.—
In the case of a provider of services or supplier with respect
to which amounts were previously overpaid, a medicare con-
tractor may request the periodic production of records or
supporting documentation for a limited sample of sub-
mitted claims to ensure that the previous practice is not
continuing.
‘‘(5) CONSENT SETTLEMENT REFORMS.—
‘‘(A) IN GENERAL.—The Secretary may use a con-
sent settlement (as defined in subparagraph (D)) to
settle a projected overpayment.
‘‘(B) OPPORTUNITY TO SUBMIT ADDITIONAL IN-
FORMATION BEFORE CONSENT SETTLEMENT OFFER.—
Before offering a provider of services or supplier a con-
sent settlement, the Secretary shall—
‘‘(i) communicate to the provider of services or
supplier—
‘‘(I) that, based on a review of the medical
records requested by the Secretary, a prelimi-
nary evaluation of those records indicates that
there would be an overpayment;
‘‘(II) the nature of the problems identified
in such evaluation; and
‘‘(III) the steps that the provider of serv-
ices or supplier should take to address the
problems; and
‘‘(ii) provide for a 45-day period during which
the provider of services or supplier may furnish ad-
206
ditional information concerning the medical records
for the claims that had been reviewed.
‘‘(C) CONSENT
SETTLEMENT
OFFER.—The Sec-
retary shall review any additional information furnished
by the provider of services or supplier under subpara-
graph (B)(ii). Taking into consideration such informa-
tion, the Secretary shall determine if there still appears
to be an overpayment. If so, the Secretary—
‘‘(i) shall provide notice of such determination
to the provider of services or supplier, including an
explanation of the reason for such determination;
and
‘‘(ii) in order to resolve the overpayment, may
offer the provider of services or supplier—
‘‘(I) the opportunity for a statistically
valid random sample; or
‘‘(II) a consent settlement.
The opportunity provided under clause (ii)(I) does not
waive any appeal rights with respect to the alleged
overpayment involved.
‘‘(D) CONSENT SETTLEMENT DEFINED.—For pur-
poses of this paragraph, the term ‘consent settlement’
means an agreement between the Secretary and a pro-
vider of services or supplier whereby both parties agree
to settle a projected overpayment based on less than a
statistically valid sample of claims and the provider of
services or supplier agrees not to appeal the claims in-
volved.
‘‘(6) NOTICE OF OVER-UTILIZATION OF CODES.—The
Secretary shall establish, in consultation with organizations
representing the classes of providers of services and sup-
pliers, a process under which the Secretary provides for no-
tice to classes of providers of services and suppliers served
by the contractor in cases in which the contractor has iden-
tified that particular billing codes may be overutilized by
that class of providers of services or suppliers under the
207
programs under this title (or provisions of title XI insofar
as they relate to such programs).
‘‘(7) PAYMENT AUDITS.—
‘‘(A) WRITTEN NOTICE FOR POST-PAYMENT AU-
DITS.—Subject to subparagraph (C), if a medicare con-
tractor decides to conduct a post-payment audit of a
provider of services or supplier under this title, the con-
tractor shall provide the provider of services or supplier
with written notice (which may be in electronic form)
of the intent to conduct such an audit.
‘‘(B) EXPLANATION OF FINDINGS FOR ALL AU-
DITS.—Subject to subparagraph (C), if a medicare con-
tractor audits a provider of services or supplier under
this title, the contractor shall—
‘‘(i) give the provider of services or supplier a
full review and explanation of the findings of the
audit in a manner that is understandable to the
provider of services or supplier and permits the de-
velopment of an appropriate corrective action plan;
‘‘(ii) inform the provider of services or supplier
of the appeal rights under this title as well as con-
sent settlement options (which are at the discretion
of the Secretary);
‘‘(iii) give the provider of services or supplier
an opportunity to provide additional information to
the contractor; and
‘‘(iv) take into account information provided,
on a timely basis, by the provider of services or
supplier under clause (iii).
‘‘(C) EXCEPTION.—Subparagraphs (A) and (B)
shall not apply if the provision of notice or findings
would compromise pending law enforcement activities,
whether civil or criminal, or reveal findings of law en-
forcement-related audits.
‘‘(8) STANDARD
METHODOLOGY
FOR
PROBE
SAM-
PLING.—The Secretary shall establish a standard method-
ology for medicare contractors to use in selecting a sample
209
billing patterns under section 1893(f)(8) of the Social Se-
curity Act, as added by subsection (a).
SEC. 836. PROVIDER ENROLLMENT PROCESS; RIGHT OF
APPEAL.
(a) IN GENERAL.—Section 1866 (42 U.S.C. 1395cc) is
amended—
(1) by adding at the end of the heading the following:
‘‘; ENROLLMENT PROCESSES’’; and
(2) by adding at the end the following new subsection:
‘‘(j) ENROLLMENT PROCESS FOR PROVIDERS OF SERV-
ICES AND SUPPLIERS.—
‘‘(1) ENROLLMENT PROCESS.—
‘‘(A) IN GENERAL.—The Secretary shall establish
by regulation a process for the enrollment of providers
of services and suppliers under this title.
‘‘(B) DEADLINES.—The Secretary shall establish
by regulation procedures under which there are dead-
lines for actions on applications for enrollment (and, if
applicable, renewal of enrollment). The Secretary shall
monitor the performance of medicare administrative
contractors in meeting the deadlines established under
this subparagraph.
‘‘(C) CONSULTATION
BEFORE
CHANGING
PRO-
VIDER ENROLLMENT FORMS.—The Secretary shall con-
sult with providers of services and suppliers before
making changes in the provider enrollment forms re-
quired of such providers and suppliers to be eligible to
submit claims for which payment may be made under
this title.
‘‘(2) HEARING RIGHTS IN CASES OF DENIAL OR NON-
RENEWAL.—A provider of services or supplier whose appli-
cation to enroll (or, if applicable, to renew enrollment)
under this title is denied may have a hearing and judicial
review of such denial under the procedures that apply
under subsection (h)(1)(A) to a provider of services that is
dissatisfied with a determination by the Secretary.’’.
(b) EFFECTIVE DATES.—
210
(1) ENROLLMENT PROCESS.—The Secretary shall pro-
vide for the establishment of the enrollment process under
section 1866(j)(1) of the Social Security Act, as added by
subsection (a)(2), within 6 months after the date of the en-
actment of this Act.
(2) CONSULTATION.—Section 1866(j)(1)(C) of the So-
cial Security Act, as added by subsection (a)(2), shall apply
with respect to changes in provider enrollment forms made
on or after January 1, 2003.
(3) HEARING RIGHTS.—Section 1866(j)(2) of the So-
cial Security Act, as added by subsection (a)(2), shall apply
to denials occurring on or after such date (not later than
1 year after the date of the enactment of this Act) as the
Secretary specifies.
SEC. 837. PROCESS FOR CORRECTION OF MINOR ER-
RORS AND OMISSIONS ON CLAIMS WITHOUT
PURSUING APPEALS PROCESS.
The Secretary shall develop, in consultation with appro-
priate medicare contractors (as defined in section 1889(g) of
the Social Security Act, as inserted by section 821(a)(1)) and
representatives of providers of services and suppliers, a process
whereby, in the case of minor errors or omissions (as defined
by the Secretary) that are detected in the submission of claims
under the programs under title XVIII of such Act, a provider
of services or supplier is given an opportunity to correct such
an error or omission without the need to initiate an appeal.
Such process shall include the ability to resubmit corrected
claims.
SEC. 838. PRIOR DETERMINATION PROCESS FOR CER-
TAIN ITEMS AND SERVICES; ADVANCE BENE-
FICIARY NOTICES.
(a) IN GENERAL.—Section 1869 (42 U.S.C. 1395ff(b)), as
amended by sections 521 and 522 of BIPA and section
833(d)(2)(B), is further amended by adding at the end the fol-
lowing new subsection:
‘‘(h) PRIOR
DETERMINATION
PROCESS
FOR
CERTAIN
ITEMS AND SERVICES.—
‘‘(1) ESTABLISHMENT OF PROCESS.—
211
‘‘(A) IN GENERAL.—With respect to a medicare
administrative contractor that has a contract under
section 1874A that provides for making payments
under this title with respect to eligible items and serv-
ices described in subparagraph (C), the Secretary shall
establish a prior determination process that meets the
requirements of this subsection and that shall be ap-
plied by such contractor in the case of eligible request-
ers.
‘‘(B) ELIGIBLE
REQUESTER.—For purposes of
this subsection, each of the following shall be an eligi-
ble requester:
‘‘(i) A physician, but only with respect to eligi-
ble items and services for which the physician may
be paid directly.
‘‘(ii) An individual entitled to benefits under
this title, but only with respect to an item or serv-
ice for which the individual receives, from the phy-
sician who may be paid directly for the item or
service, an advance beneficiary notice under section
1879(a) that payment may not be made (or may no
longer be made) for the item or service under this
title.
‘‘(C) ELIGIBLE ITEMS AND SERVICES.—For pur-
poses of this subsection and subject to paragraph (2),
eligible items and services are items and services which
are physicians’ services (as defined in paragraph (4)(A)
of section 1848(f) for purposes of calculating the sus-
tainable growth rate under such section).
‘‘(2) SECRETARIAL FLEXIBILITY.—The Secretary shall
establish by regulation reasonable limits on the categories
of eligible items and services for which a prior determina-
tion of coverage may be requested under this subsection. In
establishing such limits, the Secretary may consider the
dollar amount involved with respect to the item or service,
administrative costs and burdens, and other relevant fac-
tors.
212
‘‘(3) REQUEST FOR PRIOR DETERMINATION.—
‘‘(A) IN
GENERAL.—Subject to paragraph (2),
under the process established under this subsection an
eligible requester may submit to the contractor a re-
quest for a determination, before the furnishing of an
eligible item or service involved as to whether the item
or service is covered under this title consistent with the
applicable requirements of section 1862(a)(1)(A) (relat-
ing to medical necessity).
‘‘(B) ACCOMPANYING DOCUMENTATION.—The Sec-
retary may require that the request be accompanied by
a description of the item or service, supporting docu-
mentation relating to the medical necessity for the item
or service, and any other appropriate documentation.
In the case of a request submitted by an eligible re-
quester who is described in paragraph (1)(B)(ii), the
Secretary may require that the request also be accom-
panied by a copy of the advance beneficiary notice in-
volved.
‘‘(4) RESPONSE TO REQUEST.—
‘‘(A) IN GENERAL.—Under such process, the con-
tractor shall provide the eligible requester with written
notice of a determination as to whether—
‘‘(i) the item or service is so covered;
‘‘(ii) the item or service is not so covered; or
‘‘(iii) the contractor lacks sufficient informa-
tion to make a coverage determination.
If the contractor makes the determination described in
clause (iii), the contractor shall include in the notice a
description of the additional information required to
make the coverage determination.
‘‘(B) DEADLINE TO RESPOND.—Such notice shall
be provided within the same time period as the time pe-
riod applicable to the contractor providing notice of ini-
tial determinations on a claim for benefits under sub-
section (a)(2)(A).
213
‘‘(C) INFORMING BENEFICIARY IN CASE OF PHYSI-
CIAN REQUEST.—In the case of a request in which an
eligible requester is not the individual described in
paragraph (1)(B)(ii), the process shall provide that the
individual to whom the item or service is proposed to
be furnished shall be informed of any determination de-
scribed in clause (ii) (relating to a determination of
non-coverage) and the right (referred to in paragraph
(6)(B)) to obtain the item or service and have a claim
submitted for the item or service.
‘‘(5) EFFECT OF DETERMINATIONS.—
‘‘(A) BINDING NATURE OF POSITIVE DETERMINA-
TION.—If the contractor makes the determination de-
scribed in paragraph (4)(A)(i), such determination
shall be binding on the contractor in the absence of
fraud or evidence of misrepresentation of facts pre-
sented to the contractor.
‘‘(B) NOTICE AND RIGHT TO REDETERMINATION
IN CASE OF A DENIAL.—
‘‘(i) IN
GENERAL.—If the contractor makes
the 
determination 
described 
in 
paragraph
(4)(A)(ii)—
‘‘(I) the eligible requester has the right to
a redetermination by the contractor on the de-
termination that the item or service is not so
covered; and
‘‘(II) the contractor shall include in notice
under paragraph (4)(A) a brief explanation of
the basis for the determination, including on
what national or local coverage or noncoverage
determination (if any) the determination is
based, and the right to such a redetermination.
‘‘(ii) DEADLINE
FOR
REDETERMINATIONS.—
The contractor shall complete and provide notice of
such redetermination within the same time period
as the time period applicable to the contractor pro-
214
viding notice of redeterminations relating to a
claim for benefits under subsection (a)(3)(C)(ii).
‘‘(6) LIMITATION ON FURTHER REVIEW.—
‘‘(A) IN GENERAL.—Contractor determinations de-
scribed in paragraph (4)(A)(ii) or (4)(A)(iii) (and rede-
terminations made under paragraph (5)(B)), relating
to pre-service claims are not subject to further adminis-
trative appeal or judicial review under this section or
otherwise.
‘‘(B) DECISION NOT TO SEEK PRIOR DETERMINA-
TION OR NEGATIVE DETERMINATION DOES NOT IMPACT
RIGHT TO OBTAIN SERVICES, SEEK REIMBURSEMENT,
OR APPEAL RIGHTS.—Nothing in this subsection shall
be construed as affecting the right of an individual
who—
‘‘(i) decides not to seek a prior determination
under this subsection with respect to items or serv-
ices; or
‘‘(ii) seeks such a determination and has re-
ceived a determination described in paragraph
(4)(A)(ii)),
from receiving (and submitting a claim for) such items
services and from obtaining administrative or judicial
review respecting such claim under the other applicable
provisions of this section. Failure to seek a prior deter-
mination under this subsection with respect to items
and services shall not be taken into account in such ad-
ministrative or judicial review.
‘‘(C) NO PRIOR DETERMINATION AFTER RECEIPT
OF SERVICES.—Once an individual is provided items
and services, there shall be no prior determination
under this subsection with respect to such items or
services.’’.
(b) EFFECTIVE DATE; TRANSITION.—
(1) EFFECTIVE DATE.—The Secretary shall establish
the prior determination process under the amendment
made by subsection (a) in such a manner as to provide for
215
the acceptance of requests for determinations under such
process filed not later than 18 months after the date of the
enactment of this Act.
(2) TRANSITION.—During the period in which the
amendment made by subsection (a) has become effective
but contracts are not provided under section 1874A of the
Social Security Act with medicare administrative contrac-
tors, any reference in section 1869(g) of such Act (as
added by such amendment) to such a contractor is deemed
a reference to a fiscal intermediary or carrier with an
agreement under section 1816, or contract under section
1842, respectively, of such Act.
(3) LIMITATION ON APPLICATION TO SGR.—For pur-
poses of applying section 1848(f)(2)(D) of the Social Secu-
rity Act (42 U.S.C. 1395w–4(f)(2)(D)), the amendment
made by subsection (a) shall not be considered to be a
change in law or regulation.
(c) PROVISIONS RELATING
TO ADVANCE BENEFICIARY
NOTICES; REPORT ON PRIOR DETERMINATION PROCESS.—
(1) DATA COLLECTION.—The Secretary shall establish
a process for the collection of information on the instances
in which an advance beneficiary notice (as defined in para-
graph (4)) has been provided and on instances in which a
beneficiary indicates on such a notice that the beneficiary
does not intend to seek to have the item or service that is
the subject of the notice furnished.
(2) OUTREACH AND EDUCATION.—The Secretary shall
establish a program of outreach and education for bene-
ficiaries and providers of services and other persons on the
appropriate use of advance beneficiary notices and coverage
policies under the medicare program.
(3) GAO REPORT REPORT ON USE OF ADVANCE BENE-
FICIARY NOTICES.—Not later than 18 months after the
date on which section 1869(g) of the Social Security Act
(as added by subsection (a)) takes effect, the Comptroller
General of the United States shall submit to Congress a re-
port on the use of advance beneficiary notices under title
216
XVIII of such Act. Such report shall include information
concerning the providers of services and other persons that
have provided such notices and the response of beneficiaries
to such notices.
(4) GAO REPORT ON USE OF PRIOR DETERMINATION
PROCESS.—Not later than 18 months after the date on
which section 1869(g) of the Social Security Act (as added
by subsection (a)) takes effect, the Comptroller General of
the United States shall submit to Congress a report on the
use of the prior determination process under such section.
Such report shall include—
(A) information concerning the types of proce-
dures for which a prior determination has been sought,
determinations made under the process, and changes in
receipt of services resulting from the application of
such process; and
(B) an evaluation of whether the process was use-
ful for physicians (and other suppliers) and bene-
ficiaries, whether it was timely, and whether the
amount of information required was burdensome to
physicians and beneficiaries.
(5) ADVANCE
BENEFICIARY
NOTICE
DEFINED.—In
this subsection, the term ‘‘advance beneficiary notice’’
means a written notice provided under section 1879(a) of
the Social Security Act (42 U.S.C. 1395pp(a)) to an indi-
vidual entitled to benefits under part A or B of title XVIII
of such Act before items or services are furnished under
such part in cases where a provider of services or other
person that would furnish the item or service believes that
payment will not be made for some or all of such items or
services under such title.
Subtitle E—Miscellaneous Provisions
SEC. 841. POLICY DEVELOPMENT REGARDING EVALUA-
TION AND MANAGEMENT (E & M) DOCU-
MENTATION GUIDELINES.
(a) IN GENERAL.—The Secretary may not implement any
new documentation guidelines for evaluation and management
217
physician services under the title XVIII of the Social Security
Act on or after the date of the enactment of this Act unless
the Secretary—
(1) has developed the guidelines in collaboration with
practicing physicians (including both generalists and spe-
cialists) and provided for an assessment of the proposed
guidelines by the physician community;
(2) has established a plan that contains specific goals,
including a schedule, for improving the use of such guide-
lines;
(3) has conducted appropriate and representative pilot
projects under subsection (b) to test modifications to the
evaluation and management documentation guidelines;
(4) finds that the objectives described in subsection (c)
will be met in the implementation of such guidelines; and
(5) has established, and is implementing, a program to
educate physicians on the use of such guidelines and that
includes appropriate outreach.
The Secretary shall make changes to the manner in which ex-
isting evaluation and management documentation guidelines
are implemented to reduce paperwork burdens on physicians.
(b) PILOT PROJECTS TO TEST EVALUATION AND MAN-
AGEMENT DOCUMENTATION GUIDELINES.—
(1) IN GENERAL.—The Secretary shall conduct under
this subsection appropriate and representative pilot projects
to test new evaluation and management documentation
guidelines referred to in subsection (a).
(2) LENGTH AND CONSULTATION.—Each pilot project
under this subsection shall—
(A) be voluntary;
(B) be of sufficient length as determined by the
Secretary to allow for preparatory physician and medi-
care contractor education, analysis, and use and assess-
ment of potential evaluation and management guide-
lines; and
(C) be conducted, in development and throughout
the planning and operational stages of the project, in
218
consultation with practicing physicians (including both
generalists and specialists).
(3) RANGE OF PILOT PROJECTS.—Of the pilot projects
conducted under this subsection—
(A) at least one shall focus on a peer review meth-
od by physicians (not employed by a medicare con-
tractor) which evaluates medical record information for
claims submitted by physicians identified as statistical
outliers relative to definitions published in the Current
Procedures Terminology (CPT) code book of the Amer-
ican Medical Association;
(B) at least one shall focus on an alternative
method to detailed guidelines based on physician docu-
mentation of face to face encounter time with a patient;
(C) at least one shall be conducted for services
furnished in a rural area and at least one for services
furnished outside such an area; and
(D) at least one shall be conducted in a setting
where physicians bill under physicians’ services in
teaching settings and at least one shall be conducted in
a setting other than a teaching setting.
(4) BANNING OF TARGETING OF PILOT PROJECT PAR-
TICIPANTS.—Data collected under this subsection shall not
be used as the basis for overpayment demands or post-pay-
ment audits. Such limitation applies only to claims filed as
part of the pilot project and lasts only for the duration of
the pilot project and only as long as the provider is a par-
ticipant in the pilot project.
(5) STUDY OF IMPACT.—Each pilot project shall ex-
amine the effect of the new evaluation and management
documentation guidelines on—
(A) different types of physician practices, includ-
ing those with fewer than 10 full-time-equivalent em-
ployees (including physicians); and
(B) the costs of physician compliance, including
education, implementation, auditing, and monitoring.
219
(6) PERIODIC REPORTS.—The Secretary shall submit
to Congress periodic reports on the pilot projects under this
subsection.
(c) OBJECTIVES
FOR EVALUATION
AND MANAGEMENT
GUIDELINES.—The objectives for modified evaluation and man-
agement documentation guidelines developed by the Secretary
shall be to—
(1) identify clinically relevant documentation needed to
code accurately and assess coding levels accurately;
(2) decrease the level of non-clinically pertinent and
burdensome documentation time and content in the physi-
cian’s medical record;
(3) increase accuracy by reviewers; and
(4) educate both physicians and reviewers.
(d) STUDY OF SIMPLER, ALTERNATIVE SYSTEMS OF DOC-
UMENTATION FOR PHYSICIAN CLAIMS.—
(1) STUDY.—The Secretary shall carry out a study of
the matters described in paragraph (2).
(2) MATTERS DESCRIBED.—The matters referred to in
paragraph (1) are—
(A) the development of a simpler, alternative sys-
tem of requirements for documentation accompanying
claims for evaluation and management physician serv-
ices for which payment is made under title XVIII of
the Social Security Act; and
(B) consideration of systems other than current
coding and documentation requirements for payment
for such physician services.
(3) CONSULTATION WITH PRACTICING PHYSICIANS.—
In designing and carrying out the study under paragraph
(1), the Secretary shall consult with practicing physicians,
including physicians who are part of group practices and
including both generalists and specialists.
(4) APPLICATION
OF
HIPAA
UNIFORM
CODING
RE-
QUIREMENTS.—In developing an alternative system under
paragraph (2), the Secretary shall consider requirements of
220
administrative simplification under part C of title XI of the
Social Security Act.
(5) REPORT TO CONGRESS.—(A) Not later than Octo-
ber 1, 2004, the Secretary shall submit to Congress a re-
port on the results of the study conducted under paragraph
(1).
(B) The Medicare Payment Advisory Commission shall
conduct an analysis of the results of the study included in
the report under subparagraph (A) and shall submit a re-
port on such analysis to Congress.
(e) STUDY ON APPROPRIATE CODING OF CERTAIN EX-
TENDED OFFICE VISITS.—The Secretary shall conduct a study
of the appropriateness of coding in cases of extended office vis-
its in which there is no diagnosis made. Not later than October
1, 2004, the Secretary shall submit a report to Congress on
such study and shall include recommendations on how to code
appropriately for such visits in a manner that takes into ac-
count the amount of time the physician spent with the patient.
(f) DEFINITIONS.—In this section—
(1) the term ‘‘rural area’’ has the meaning given that
term in section 1886(d)(2)(D) of the Social Security Act,
42 U.S.C. 1395ww(d)(2)(D); and
(2) the term ‘‘teaching settings’’ are those settings de-
scribed in section 415.150 of title 42, Code of Federal Reg-
ulations.
SEC. 842. IMPROVEMENT IN OVERSIGHT OF TECH-
NOLOGY AND COVERAGE.
(a) IMPROVED COORDINATION BETWEEN FDA AND CMS
ON COVERAGE OF BREAKTHROUGH MEDICAL DEVICES.—
(1) IN GENERAL.—Upon request by an applicant and
to the extent feasible (as determined by the Secretary), the
Secretary shall, in the case of a class III medical device
that is subject to premarket approval under section 515 of
the Federal Food, Drug, and Cosmetic Act, ensure the
sharing of appropriate information from the review for ap-
plication for premarket approval conducted by the Food
221
and Drug Administration for coverage decisions under title
XVIII of the Social Security Act.
(2) PUBLICATION OF PLAN.—Not later than 6 months
after the date of the enactment of this Act, the Secretary
shall submit to appropriate Committees of Congress a re-
port that contains the plan for improving such coordination
and for shortening the time lag between the premarket ap-
proval by the Food and Drug Administration and coding
and coverage decisions by the Centers for Medicare & Med-
icaid Services.
(3) CONSTRUCTION.—Nothing in this subsection shall
be construed as changing the criteria for coverage of a
medical device under title XVIII of the Social Security Act
nor premarket approval by the Food and Drug Administra-
tion and nothing in this subsection shall be construed to in-
crease premarket approval application requirements under
the Federal Food, Drug, and Cosmetic Act.
(b) COUNCIL FOR TECHNOLOGY AND INNOVATION.—Sec-
tion 1868 (42 U.S.C. 1395ee), as amended by section 821(a),
is amended by adding at the end the following new subsection:
‘‘(c) COUNCIL FOR TECHNOLOGY AND INNOVATION.—
‘‘(1) ESTABLISHMENT.—The Secretary shall establish
a Council for Technology and Innovation within the Cen-
ters for Medicare & Medicaid Services (in this section re-
ferred to as ‘CMS’).
‘‘(2) COMPOSITION.—The Council shall be composed
of senior CMS staff and clinicians and shall be chaired by
the Executive Coordinator for Technology and Innovation
(appointed or designated under paragraph (4)).
‘‘(3) DUTIES.—The Council shall coordinate the activi-
ties of coverage, coding, and payment processes under this
title with respect to new technologies and procedures, in-
cluding new drug therapies, and shall coordinate the ex-
change of information on new technologies between CMS
and other entities that make similar decisions.
‘‘(4) EXECUTIVE
COORDINATOR
FOR
TECHNOLOGY
AND INNOVATION.—The Secretary shall appoint (or des-
222
ignate) a noncareer appointee (as defined in section
3132(a)(7) of title 5, United States Code) who shall serve
as the Executive Coordinator for Technology and Innova-
tion. Such executive coordinator shall report to the Admin-
istrator of CMS, shall chair the Council, shall oversee the
execution of its duties, and shall serve as a single point of
contact for outside groups and entities regarding the cov-
erage, coding, and payment processes under this title.’’.
(c) GAO STUDY ON IMPROVEMENTS IN EXTERNAL DATA
COLLECTION FOR USE IN THE MEDICARE INPATIENT PAY-
MENT SYSTEM.—
(1) STUDY.—The Comptroller General of the United
States shall conduct a study that analyzes which external
data can be collected in a shorter time frame by the Cen-
ters for Medicare & Medicaid Services for use in computing
payments for inpatient hospital services. The study may in-
clude an evaluation of the feasibility and appropriateness of
using of quarterly samples or special surveys or any other
methods. The study shall include an analysis of whether
other executive agencies, such as the Bureau of Labor Sta-
tistics in the Department of Commerce, are best suited to
collect this information.
(2) REPORT.—By not later than October 1, 2003, the
Comptroller General shall submit a report to Congress on
the study under paragraph (1).
(d) IOM STUDY
ON
LOCAL
COVERAGE
DETERMINA-
TIONS.—
(1) STUDY.—The Secretary shall enter into an ar-
rangement with the Institute of Medicine of the National
Academy of Sciences under which the Institute shall con-
duct a study on local coverage determinations (including
the application of local medical review policies) under the
medicare program under title XVIII of the Social Security
Act. Such study shall examine—
(A) the consistency of the definitions used in such
determinations;
223
(B) the types of evidence on which such deter-
minations are based, including medical and scientific
evidence;
(C) the advantages and disadvantages of local cov-
erage decisionmaking, including the flexibility it offers
for ensuring timely patient access to new medical tech-
nology for which data are still be collected;
(D) the manner in which the local coverage deter-
mination process is used to develop data needed for a
national coverage determination, including the need for
collection of such data within a protocol and informed
consent by individuals entitled to benefits under part A
of title XVIII of the Social Security Act, or enrolled
under part B of such title, or both; and
(E) the advantages and disadvantages of main-
taining local medicare contractor advisory committees
that can advise on local coverage decisions based on an
open, collaborative public process.
(2) REPORT.—Such arrangement shall provide that
the Institute shall submit to the Secretary a report on such
study by not later than 3 years after the date of the enact-
ment of this Act. The Secretary shall promptly transmit a
copy of such report to Congress.
(e) METHODS FOR DETERMINING PAYMENT BASIS FOR
NEW LAB TESTS.—Section 1833(h) (42 U.S.C. 1395l(h)) is
amended by adding at the end the following:
‘‘(8)(A) The Secretary shall establish by regulation proce-
dures for determining the basis for, and amount of, payment
under this subsection for any clinical diagnostic laboratory test
with respect to which a new or substantially revised HCPCS
code is assigned on or after January 1, 2004 (in this para-
graph referred to as ‘new tests’).
‘‘(B) Determinations under subparagraph (A) shall be
made only after the Secretary—
‘‘(i) makes available to the public (through an Internet
site and other appropriate mechanisms) a list that includes
224
any such test for which establishment of a payment amount
under this subsection is being considered for a year;
‘‘(ii) on the same day such list is made available,
causes to have published in the Federal Register notice of
a meeting to receive comments and recommendations (and
data on which recommendations are based) from the public
on the appropriate basis under this subsection for estab-
lishing payment amounts for the tests on such list;
‘‘(iii) not less than 30 days after publication of such
notice convenes a meeting, that includes representatives of
officials of the Centers for Medicare & Medicaid Services
involved in determining payment amounts, to receive such
comments and recommendations (and data on which the
recommendations are based);
‘‘(iv) taking into account the comments and rec-
ommendations (and accompanying data) received at such
meeting, develops and makes available to the public
(through an Internet site and other appropriate mecha-
nisms) a list of proposed determinations with respect to the
appropriate basis for establishing a payment amount under
this subsection for each such code, together with an expla-
nation of the reasons for each such determination, the data
on which the determinations are based, and a request for
public written comments on the proposed determination;
and
‘‘(v) taking into account the comments received during
the public comment period, develops and makes available to
the public (through an Internet site and other appropriate
mechanisms) a list of final determinations of the payment
amounts for such tests under this subsection, together with
the rationale for each such determination, the data on
which the determinations are based, and responses to com-
ments and suggestions received from the public.
‘‘(C) Under the procedures established pursuant to sub-
paragraph (A), the Secretary shall—
‘‘(i) set forth the criteria for making determinations
under subparagraph (A); and
225
‘‘(ii) make available to the public the data (other than
proprietary data) considered in making such determina-
tions.
‘‘(D) The Secretary may convene such further public meet-
ings to receive public comments on payment amounts for new
tests under this subsection as the Secretary deems appropriate.
‘‘(E) For purposes of this paragraph:
‘‘(i) The term ‘HCPCS’ refers to the Health Care Pro-
cedure Coding System.
‘‘(ii) A code shall be considered to be ‘substantially re-
vised’ if there is a substantive change to the definition of
the test or procedure to which the code applies (such as a
new analyte or a new methodology for measuring an exist-
ing analyte-specific test).’’.
SEC. 843. TREATMENT OF HOSPITALS FOR CERTAIN
SERVICES UNDER MEDICARE SECONDARY
PAYOR (MSP) PROVISIONS.
(a) IN GENERAL.—The Secretary shall not require a hos-
pital (including a critical access hospital) to ask questions (or
obtain information) relating to the application of section
1862(b) of the Social Security Act (relating to medicare sec-
ondary payor provisions) in the case of reference laboratory
services described in subsection (b), if the Secretary does not
impose such requirement in the case of such services furnished
by an independent laboratory.
(b) REFERENCE LABORATORY SERVICES DESCRIBED.—
Reference laboratory services described in this subsection are
clinical laboratory diagnostic tests (or the interpretation of
such tests, or both) furnished without a face-to-face encounter
between the individual entitled to benefits under part A or en-
rolled under part B, or both, and the hospital involved and in
which the hospital submits a claim only for such test or inter-
pretation.
SEC. 844. EMTALA IMPROVEMENTS.
(a) PAYMENT FOR EMTALA-MANDATED SCREENING AND
STABILIZATION SERVICES.—
226
(1) IN GENERAL.—Section 1862 (42 U.S.C. 1395y) is
amended by inserting after subsection (c) the following new
subsection:
‘‘(d) For purposes of subsection (a)(1)(A), in the case of
any item or service that is required to be provided pursuant to
section 1867 to an individual who is entitled to benefits under
this title, determinations as to whether the item or service is
reasonable and necessary shall be made on the basis of the in-
formation available to the treating physician or practitioner (in-
cluding the patient’s presenting symptoms or complaint) at the
time the item or service was ordered or furnished by the physi-
cian or practitioner (and not on the patient’s principal diag-
nosis). When making such determinations with respect to such
an item or service, the Secretary shall not consider the fre-
quency with which the item or service was provided to the pa-
tient before or after the time of the admission or visit.’’.
(2) EFFECTIVE
DATE.—The amendment made by
paragraph (1) shall apply to items and services furnished
on or after January 1, 2003.
(b) NOTIFICATION OF PROVIDERS WHEN EMTALA IN-
VESTIGATION CLOSED.—Section 1867(d) (42 U.S.C. 42 U.S.C.
1395dd(d)) is amended by adding at the end the following new
paragraph:
‘‘(4) NOTICE UPON CLOSING AN INVESTIGATION.—The
Secretary shall establish a procedure to notify hospitals and
physicians when an investigation under this section is
closed.’’.
(c) PRIOR REVIEW BY PEER REVIEW ORGANIZATIONS IN
EMTALA CASES INVOLVING TERMINATION
OF PARTICIPA-
TION.—
(1) IN
GENERAL.—Section 1867(d)(3) (42 U.S.C.
1395dd(d)(3)) is amended—
(A) in the first sentence, by inserting ‘‘or in termi-
nating a hospital’s participation under this title’’ after
‘‘in imposing sanctions under paragraph (1)’’; and
(B) by adding at the end the following new sen-
tences: ‘‘Except in the case in which a delay would
227
jeopardize the health or safety of individuals, the Sec-
retary shall also request such a review before making
a compliance determination as part of the process of
terminating a hospital’s participation under this title
for violations related to the appropriateness of a med-
ical screening examination, stabilizing treatment, or an
appropriate transfer as required by this section, and
shall provide a period of 5 days for such review. The
Secretary shall provide a copy of the report on the or-
ganization’s report to the hospital or physician con-
sistent with confidentiality requirements imposed on
the organization under such part B.’’.
(2) EFFECTIVE
DATE.—The amendments made by
paragraph (1) shall apply to terminations of participation
initiated on or after the date of the enactment of this Act.
SEC. 845. EMERGENCY MEDICAL TREATMENT AND AC-
TIVE LABOR ACT (EMTALA) TECHNICAL AD-
VISORY GROUP.
(a) ESTABLISHMENT.—The Secretary shall establish a
Technical Advisory Group (in this section referred to as the
‘‘Advisory Group’’) to review issues related to the Emergency
Medical Treatment and Active Labor Act (EMTALA) and its
implementation. In this section, the term ‘‘EMTALA’’ refers to
the provisions of section 1867 of the Social Security Act (42
U.S.C. 1395dd).
(b) MEMBERSHIP.—The Advisory Group shall be com-
posed of 19 members, including the Administrator of the Cen-
ters for Medicare & Medicaid Services and the Inspector Gen-
eral of the Department of Health and Human Services and of
which—
(1) 4 shall be representatives of hospitals, including at
least one public hospital, that have experience with the ap-
plication of EMTALA and at least 2 of which have not
been cited for EMTALA violations;
(2) 7 shall be practicing physicians drawn from the
fields of emergency medicine, cardiology or cardiothoracic
surgery, orthopedic surgery, neurosurgery, obstetrics-gyne-
228
cology, and psychiatry, with not more than one physician
from any particular field;
(3) 2 shall represent patients;
(4) 2 shall be staff involved in EMTALA investiga-
tions from different regional offices of the Centers for
Medicare & Medicaid Services; and
(5) 1 shall be from a State survey office involved in
EMTALA investigations and 1 shall be from a peer review
organization, both of whom shall be from areas other than
the regions represented under paragraph (4).
In selecting members described in paragraphs (1) through (3),
the Secretary shall consider qualified individuals nominated by
organizations representing providers and patients.
(c) GENERAL RESPONSIBILITIES.—The Advisory Group—
(1) shall review EMTALA regulations;
(2) may provide advice and recommendations to the
Secretary with respect to those regulations and their appli-
cation to hospitals and physicians;
(3) shall solicit comments and recommendations from
hospitals, physicians, and the public regarding the imple-
mentation of such regulations; and
(4) may disseminate information on the application of
such regulations to hospitals, physicians, and the public.
(d) ADMINISTRATIVE MATTERS.—
(1) CHAIRPERSON.—The members of the Advisory
Group shall elect a member to serve as chairperson of the
Advisory Group for the life of the Advisory Group.
(2) MEETINGS.—The Advisory Group shall first meet
at the direction of the Secretary. The Advisory Group shall
then meet twice per year and at such other times as the
Advisory Group may provide.
(e) TERMINATION.—The Advisory Group shall terminate
30 months after the date of its first meeting.
(f) WAIVER OF ADMINISTRATIVE LIMITATION.—The Sec-
retary shall establish the Advisory Group notwithstanding any
limitation that may apply to the number of advisory committees
229
that may be established (within the Department of Health and
Human Services or otherwise).
SEC. 846. AUTHORIZING USE OF ARRANGEMENTS WITH
OTHER HOSPICE PROGRAMS TO PROVIDE
CORE HOSPICE SERVICES IN CERTAIN CIR-
CUMSTANCES.
(a) IN
GENERAL.—Section 1861(dd)(5) (42 U.S.C.
1395x(dd)(5)) is amended by adding at the end the following
new subparagraph:
‘‘(D) In extraordinary, exigent, or other non-routine cir-
cumstances, such as unanticipated periods of high patient
loads, staffing shortages due to illness or other events, or tem-
porary travel of a patient outside a hospice program’s service
area, a hospice program may enter into arrangements with an-
other hospice program for the provision by that other program
of services described in paragraph (2)(A)(ii)(I). The provisions
of paragraph (2)(A)(ii)(II) shall apply with respect to the serv-
ices provided under such arrangements.’’.
(b) CONFORMING PAYMENT PROVISION.—Section 1814(i)
(42 U.S.C. 1395f(i)) is amended by adding at the end the fol-
lowing new paragraph:
‘‘(4) In the case of hospice care provided by a hospice pro-
gram under arrangements under section 1861(dd)(5)(D) made
by another hospice program, the hospice program that made
the arrangements shall bill and be paid for the hospice care.’’.
(c) EFFECTIVE DATE.—The amendments made by this
section shall apply to hospice care provided on or after the date
of the enactment of this Act.
SEC. 847. APPLICATION OF OSHA BLOODBORNE PATHO-
GENS STANDARD TO CERTAIN HOSPITALS.
(a) IN GENERAL.—Section 1866 (42 U.S.C. 1395cc) is
amended—
(1) in subsection (a)(1)—
(A) in subparagraph (R), by striking ‘‘and’’ at the
end;
(B) in subparagraph (S), by striking the period at
the end and inserting ‘‘, and’’; and
230
(C) by inserting after subparagraph (S) the fol-
lowing new subparagraph:
‘‘(T) in the case of hospitals that are not otherwise
subject to the Occupational Safety and Health Act of 1970,
to comply with the Bloodborne Pathogens standard under
section 1910.1030 of title 29 of the Code of Federal Regu-
lations (or as subsequently redesignated).’’; and
(B) by adding at the end of subsection (b) the fol-
lowing new paragraph:
‘‘(4)(A) A hospital that fails to comply with the require-
ment of subsection (a)(1)(T) (relating to the Bloodborne
Pathogens standard) is subject to a civil money penalty in an
amount described in subparagraph (B), but is not subject to
termination of an agreement under this section.
‘‘(B) The amount referred to in subparagraph (A) is an
amount that is similar to the amount of civil penalties that may
be imposed under section 17 of the Occupational Safety and
Health Act of 1970 for a violation of the Bloodborne Pathogens
standard referred to in subsection (a)(1)(T) by a hospital that
is subject to the provisions of such Act.
‘‘(C) A civil money penalty under this paragraph shall be
imposed and collected in the same manner as civil money pen-
alties under subsection (a) of section 1128A are imposed and
collected under that section.’’.
(b) EFFECTIVE DATE.—The amendments made by this
subsection (a) shall apply to hospitals as of July 1, 2003.
SEC. 848. BIPA-RELATED TECHNICAL AMENDMENTS AND
CORRECTIONS.
(a) TECHNICAL AMENDMENTS RELATING TO ADVISORY
COMMITTEE UNDER BIPA SECTION 522.—(1) Subsection (i) of
section 1114 (42 U.S.C. 1314)—
(A) is transferred to section 1862 and added at the
end of such section; and
(B) is redesignated as subsection (j).
(2) Section 1862 (42 U.S.C. 1395y) is amended—
(A) in the last sentence of subsection (a), by striking
‘‘established under section 1114(f)’’; and
231
(B) in subsection (j), as so transferred and
redesignated—
(i) by striking ‘‘under subsection (f)’’; and
(ii) by striking ‘‘section 1862(a)(1)’’ and inserting
‘‘subsection (a)(1)’’.
(b) 
TERMINOLOGY
CORRECTIONS.—(1) 
Section
1869(c)(3)(I)(ii) (42 U.S.C. 1395ff(c)(3)(I)(ii)), as amended by
section 521 of BIPA, is amended—
(A) in subclause (III), by striking ‘‘policy’’ and insert-
ing ‘‘determination’’; and
(B) in subclause (IV), by striking ‘‘medical review ––
policies’’ and inserting ‘‘coverage determinations’’.
(2) Section 1852(a)(2)(C) (42 U.S.C. 1395w–22(a)(2)(C))
is amended by striking ‘‘policy’’ and ‘‘POLICY’’ and inserting
‘‘determination’’ each place it appears and ‘‘DETERMINATION’’,
respectively.
(c) REFERENCE CORRECTIONS.—Section 1869(f)(4) (42
U.S.C. 1395ff(f)(4)), as added by section 522 of BIPA, is
amended—
(1) in subparagraph (A)(iv), by striking ‘‘subclause
–(I), (II), or (III)’’ and inserting ‘‘clause (i), (ii), or (iii)’’;
(2) in subparagraph (B), by striking ‘‘clause (i)(IV)’’
and ‘‘clause (i)(III)’’ and inserting ‘‘subparagraph (A)(iv)’’
and ‘‘subparagraph (A)(iii)’’, respectively; and
(3) in subparagraph (C), by striking ‘‘clause (i)’’,
‘‘subclause (IV)’’ and ‘‘subparagraph (A)’’ and inserting
‘‘subparagraph 
(A)’’, 
‘‘clause 
(iv)’’ 
and 
‘‘paragraph
(1)(A)’’, respectively each place it appears.
(d) OTHER CORRECTIONS.—Effective as if included in the
enactment of section 521(c) of BIPA, section 1154(e) (42
U.S.C. 1320c–3(e)) is amended by striking paragraph (5).
(e) EFFECTIVE DATE.—Except as otherwise provided, the
amendments made by this section shall be effective as if in-
cluded in the enactment of BIPA.
232
SEC. 849. CONFORMING AUTHORITY TO WAIVE A PRO-
GRAM EXCLUSION.
The first sentence of section 1128(c)(3)(B) (42 U.S.C.
1320a–7(c)(3)(B)) is amended to read as follows: ‘‘Subject to
subparagraph (G), in the case of an exclusion under subsection
(a), the minimum period of exclusion shall be not less than five
years, except that, upon the request of the administrator of a
Federal health care program (as defined in section 1128B(f))
who determines that the exclusion would impose a hardship on
individuals entitled to benefits under part A of title XVIII or
enrolled under part B of such title, or both, the Secretary may
waive the exclusion under subsection (a)(1), (a)(3), or (a)(4)
with respect to that program in the case of an individual or en-
tity that is the sole community physician or sole source of es-
sential specialized services in a community.’’.
SEC. 850. TREATMENT OF CERTAIN DENTAL CLAIMS.
(a) IN GENERAL.—Section 1862 (42 U.S.C. 1395y) is
amended by inserting after subsection (c) the following new
subsection:
‘‘(d)(1) Subject to paragraph (2), a group health plan (as
defined in subsection (a)(1)(A)(v)) providing supplemental or
secondary coverage to individuals also entitled to services under
this title shall not require a medicare claims determination
under this title for dental benefits specifically excluded under
subsection (a)(12) as a condition of making a claims deter-
mination for such benefits under the group health plan.
‘‘(2) A group health plan may require a claims determina-
tion under this title in cases involving or appearing to involve
inpatient dental hospital services or dental services expressly
covered under this title pursuant to actions taken by the Sec-
retary.’’.
(b) EFFECTIVE DATE.—The amendment made by sub-
section (a) shall take effect on the date that is 60 days after
the date of the enactment of this Act.
233
SEC. 851. ANNUAL PUBLICATION OF LIST OF NATIONAL
COVERAGE DETERMINATIONS.
The Secretary shall provide, in an appropriate annual pub-
lication available to the public, a list of national coverage deter-
minations made under title XVIII of the Social Security Act in
the previous year and information on how to get more informa-
tion with respect to such determinations.
TITLE 
IX—MEDICAID, 
PUBLIC
HEALTH, AND OTHER HEALTH
PROVISIONS
Subtitle A—Medicaid Provisions
SEC. 901. NATIONAL BIPARTISAN COMMISSION ON THE
FUTURE OF MEDICAID.
(a) ESTABLISHMENT.—There is established a commission
to be known as the National Bipartisan Commission on the Fu-
ture of Medicaid (in this section referred to as the ‘‘Commis-
sion’’).
(b) DUTIES
OF
THE
COMMISSION.—The Commission
shall—
(1) review and analyze the long-term financial condi-
tion of the medicaid program under title XIX of the Social
Security Act (42 U.S.C. 1396 et seq.);
(2) identify the factors that are causing, and the con-
sequences of, increases in costs under the medicaid pro-
gram, including—
(A) the impact of these cost increases upon State
budgets, funding for other State programs, and levels
of State taxes necessary to fund growing expenditures
under the medicaid program;
(B) the financial obligations of the Federal gov-
ernment arising from the Federal matching require-
ment for expenditures under the medicaid program;
and
(C) the size and scope of the current program and
how the program has evolved over time;
234
(3) analyze potential policies that will ensure both the
financial integrity of the medicaid program and the provi-
sion of appropriate benefits under such program;
(4) make recommendations for establishing incentives
and structures to promote enhanced efficiencies and ways
of encouraging innovative State policies under the medicaid
program;
(5) make recommendations for establishing the appro-
priate balance between benefits covered, payments to pro-
viders, State and Federal contributions and, where appro-
priate, recipient cost-sharing obligations;
(6) make recommendations on the impact of pro-
moting increased utilization of competitive, private enter-
prise models to contain program cost growth, through en-
hanced utilization of private plans, pharmacy benefit man-
agers, and other methods currently being used to contain
private sector health-care costs;
(7) make recommendations on the financing of pre-
scription drug benefits currently covered under medicaid
programs, including analysis of the current Federal manu-
facturer rebate program, its impact upon both private mar-
ket prices as well as those paid by other government pur-
chasers, recent State efforts to negotiate additional supple-
mental manufacturer rebates and the ability of pharmacy
benefit managers to lower drug costs;
(8) review and analyze such other matters relating to
the medicaid program as the Commission deems appro-
priate; and
(9) analyze the impact of impending demographic
changes upon medicaid benefits, including long term care
services, and make recommendations for how best to appro-
priately divide State and Federal responsibilities for fund-
ing these benefits.
(c) MEMBERSHIP.—
(1) NUMBER
AND
APPOINTMENT.—The Commission
shall be composed of 17 members, of whom—
(A) four shall be appointed by the President;