I
106TH CONGRESS
2D SESSION
H. R. 5200
To amend title XVIII of the Social Security Act to ensure that the Secretary
of Health and Human Services provides appropriate guidance to physi-
cians and other health care providers that are attempting to properly
submit claims under the medicare program and to ensure that the Sec-
retary targets truly fraudulent activity for enforcement of medicare billing
regulations, rather than inadvertent billing errors.
IN THE HOUSE OF REPRESENTATIVES
SEPTEMBER 18, 2000
Mr. TOOMEY (for himself and Ms. BERKLEY) introduced the following bill;
which was referred to the Committee on Commerce, and in addition to
the Committee on Ways and Means, for a period to be subsequently de-
termined by the Speaker, in each case for consideration of such provisions
as fall within the jurisdiction of the committee concerned
A BILL
To amend title XVIII of the Social Security Act to ensure
that the Secretary of Health and Human Services pro-
vides appropriate guidance to physicians and other health
care providers that are attempting to properly submit
claims under the medicare program and to ensure that
the Secretary targets truly fraudulent activity for en-
forcement of medicare billing regulations, rather than
inadvertent billing errors.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) SHORT TITLE.—This Act may be cited as the
‘‘Medicare Billing and Education Act of 2000’’.
(b) TABLE OF CONTENTS.—The table of contents of
this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings.
Sec. 3. Definitions.
TITLE I—REGULATORY REFORM
Sec. 101. Prospective application of certain regulations.
Sec. 102. Requirements for judicial and regulatory challenges of regulations.
Sec. 103. Prohibition of recovering past overpayments by certain means.
Sec. 104. Prohibition of recovering past overpayments if appeal pending.
TITLE II—APPEALS PROCESS REFORMS
Sec. 201. Reform of post-payment audit process.
Sec. 202. Definitions relating to protections for physicians, suppliers, and pro-
viders of services.
Sec. 203. Right to appeal on behalf of deceased beneficiaries.
TITLE III—EDUCATION COMPONENTS
Sec. 301. Designated funding levels for provider education.
Sec. 302. Advisory opinions.
TITLE IV—SUSTAINABLE GROWTH RATE REFORMS
Sec. 401. Inclusion of regulatory costs in the calculation of the sustainable
growth rate.
TITLE V—STUDIES AND REPORTS
Sec. 501. GAO audit and report on compliance with certain statutory adminis-
trative procedure requirements.
Sec. 502. GAO study and report on provider participation.
SEC. 2. FINDINGS.
Congress finds the following:
(1) Physicians, providers of services, and sup-
pliers of medical equipment and supplies that par-
ticipate in the medicare program under title XVIII
of the Social Security Act must contend with over
100,000 pages of complex medicare regulations,
most of which are unknowable to the average health
care provider.
(2) Many physicians are choosing to discontinue
participation in the medicare program to avoid be-
coming the target of an overzealous Government in-
vestigation regarding compliance with the extensive
regulations governing the submission and payment
of medicare claims.
(3) Health Care Financing Administration con-
tractors send post-payment review letters to physi-
cians that require the physician to submit to addi-
tional substantial Government interference with the
practice of the physician in order to preserve the
physician’s right to due process.
(4) When a Health Care Financing Administra-
tion contractor sends a post-payment review letter to
a physician, that contractor often has no telephone
or face-to-face communication with the physician,
provider of services, or supplier.
(5) The Health Care Financing Administration
targets billing errors as though health care providers
have committed fraudulent acts, but has not ade-
quately educated physicians, providers of services,
and suppliers regarding medicare billing require-
ments.
(6) The Office of the Inspector General of the
Department of Health and Human Services found
that 75 percent of surveyed physicians had never re-
ceived any educational materials from a Health Care
Financing Administration contractor concerning the
equipment and supply ordering process.
SEC. 3. DEFINITIONS.
In this Act:
(1) APPLICABLE AUTHORITY.—The term ‘‘ap-
plicable authority’’ has the meaning given such term
in section 1861(uu)(1) of the Social Security Act (as
added by section 202).
(2) CARRIER.—The term ‘‘carrier’’ means a
carrier (as defined in section 1842(f) of the Social
Security Act (42 U.S.C. 1395u(f))) with a contract
under title XVIII of such Act to administer benefits
under part B of such title.
(3) EXTRAPOLATION.—The term ‘‘extrapo-
lation’’ has the meaning given such term in section
1861(uu)(2) of the Social Security Act (as added by
section 202).
(4) FISCAL INTERMEDIARY.—The term ‘‘fiscal
intermediary’’ means a fiscal intermediary (as de-
‘‘(3) Any regulation described under paragraph
(2) may not take effect earlier than the date on
which such regulation becomes a final regulation.
Any regulation described under such paragraph that
applies to an agency action, including any agency
determination, shall only apply as that regulation is
in effect at the time that agency action is taken.’’.
(b) EFFECTIVE DATE.—The amendment made by
this section shall take effect 60 days after the date of en-
actment of this Act.
SEC. 102. REQUIREMENTS FOR JUDICIAL AND REGU-
LATORY CHALLENGES OF REGULATIONS.
(a) RIGHT TO CHALLENGE CONSTITUTIONALITY AND
STATUTORY AUTHORITY OF HCFA REGULATIONS.—Sec-
tion 1872 of the Social Security Act (42 U.S.C. 1395ii)
is amended to read as follows:
‘‘APPLICATION OF CERTAIN PROVISIONS OF TITLE II
‘‘SEC. 1872. The provisions of sections 206 and
216(j), and of subsections (a), (d), (e), (h), (i), (j), (k),
and (l) of section 205, shall also apply with respect to this
title to the same extent as they are applicable with respect
to title II, except that—
‘‘(1) in applying such provisions with respect to
this title, any reference therein to the Commissioner
of Social Security or the Social Security Administra-
tion shall be considered a reference to the Secretary
or the Department of Health and Human Services,
respectively; and
‘‘(2) section 205(h) shall not apply with respect
to any action brought against the Secretary under
section 1331 or 1346 of title 28, United States
Code, regardless of whether such action is unrelated
to a specific determination of the Secretary, that
challenges—
‘‘(A) the constitutionality of the Sec-
retary’s regulations or policies;
‘‘(B) the Secretary’s statutory authority to
promulgate such regulations or policies; or
‘‘(C) a finding of good cause under sub-
paragraph (B) of the sentence following section
553(b)(3), United States Code.’’.
(b) CONSTRUCTION OF HEARING RIGHTS RELATING
TO DETERMINATIONS BY THE SECRETARY REGARDING
AGREEMENTS WITH PROVIDERS OF SERVICES.—Section
1866(h) of the Social Security Act (42 U.S.C. 1395cc(h))
is amended by adding at the end the following new para-
graph:
‘‘(3) For purposes of applying paragraph (1), an in-
stitution or agency dissatisfied with a determination by
the Secretary described in such paragraph shall be entitled
to a hearing thereon regardless of whether—
‘‘(A) such determination has been made by the
Secretary or by a State pursuant to an agreement
entered into with the Secretary under section 1864;
or
‘‘(B) the Secretary has imposed or may impose
a remedy, penalty, or other sanction on the institu-
tion or agency in connection with such determina-
tion.’’.
(c) EFFECTIVE DATE.—The amendments made by
this section shall take effect 60 days after the date of en-
actment of this Act.
SEC. 103. PROHIBITION OF RECOVERING PAST OVERPAY-
MENTS BY CERTAIN MEANS.
(a) IN GENERAL.—Except as provided in subsection
(b) and notwithstanding sections 1815(a), 1842(b), and
1861(v)(1)(A)(ii) of the Social Security Act (42 U.S.C.
1395g(a), 1395u(a), and 1395x(v)(1)(A)(ii)), or any other
provision of law, for purposes of applying sections
1842(b)(3)(B)(ii), 1866(a)(1)(B)(ii), 1870, and 1893 of
such 
Act 
(42 
U.S.C. 
1395u(b)(3)(B)(ii),
1395cc(a)(1)(B)(ii), 1395gg, and 1395ddd), the Secretary
may not offset any future payment to a health care pro-
vider to recoup a previously made overpayment, but in-
stead shall establish a repayment plan to recoup such an
overpayment.
(b) EXCEPTION.—This section shall not apply to
cases in which the Secretary finds clear and convincing
evidence of fraud or similar fault on the part of such pro-
vider.
SEC. 104. PROHIBITION OF RECOVERING PAST OVERPAY-
MENTS IF APPEAL PENDING.
Notwithstanding any provision of law, for purposes
of applying sections 1842(b)(3)(B)(ii), 1866(a)(1)(B)(ii),
1870, and 1893 of the Social Security Act (42 U.S.C.
1395u(b)(3)(B)(ii), 1395cc(a)(1)(B)(ii), 1395gg, and
1395ddd), the Secretary may not take any action (or au-
thorize any other person, including any fiscal inter-
mediary, carrier, and contractor under section 1893 of
such Act (42 U.S.C. 1395ddd)) to recoup an overpayment
during the period in which a health care provider is ap-
pealing a determination that such an overpayment has
been made or the amount of the overpayment.
TITLE II—APPEALS PROCESS
REFORMS
SEC. 201. REFORM OF POST-PAYMENT AUDIT PROCESS.
(a) COMMUNICATIONS
TO
PHYSICIANS.—Section
1842 of the Social Security Act (42 U.S.C. 1395u) is
amended by adding at the end the following new sub-
section:
‘‘(u) In carrying out its contract under subsection
(b)(3), with respect to physicians’ services, the carrier
shall provide for the recoupment of overpayments in the
following manner:
‘‘(1)(A) During the 1-year period beginning on
the date on which a physician receives an overpay-
ment, the physician may return the overpayment to
the carrier making such overpayment if—
‘‘(i) the carrier or a contractor under sec-
tion 1893 has not requested any relevant record
or file; and
‘‘(ii) the case has not been referred to the
Department of Justice or the Office of Inspec-
tor General.
‘‘(B) If a physician returns an overpayment
under subparagraph (A), neither the carrier, con-
tractor under section 1893, nor any law enforcement
agency may begin an investigation or target such
physician based on any claim associated with the
amount the physician has repaid.
‘‘(2) If a carrier or a contractor under section
1893 identifies (before or during post-payment re-
view activities) that a physician has submitted a
claim with a coding, documentation, or billing incon-
sistency, before sending any written communication
to such physician, the carrier or a contractor under
section 1893 shall contact the physician by telephone
or in person at the physician’s place of business dur-
ing regular business hours and shall—
‘‘(A) identify the billing anomaly;
‘‘(B) inform the physician of how to ad-
dress the anomaly; and
‘‘(C) describe the type of coding or docu-
mentation that is required for the claim.
‘‘(3) The carrier or a contractor under section
1893 may not recoup or offset payment amounts
based on extrapolation (as defined in section
1861(uu)(2)) if the physician has not been the sub-
ject of a post-payment audit.
‘‘(4) As part of any written consent settlement
communication, the carrier or a contractor under
section 1893 shall clearly state that the physician
may submit additional information (including evi-
dence other than medical records) to dispute the
overpayment amount without waiving any adminis-
trative remedy or right to appeal the amount of the
overpayment.
‘‘(5) As part of the administrative appeals proc-
ess for any amount in controversy, a physician may
directly appeal any adverse determination of the car-