H. R. 1—348
SEC. 938. PRIOR DETERMINATION PROCESS FOR CERTAIN ITEMS AND
SERVICES; ADVANCE BENEFICIARY NOTICES.
(a) IN
GENERAL.—Section 1869 (42 U.S.C. 1395ff(b)), as
amended by section 933(d)(2)(B), is further amended by adding
at the end the following new subsection:
‘‘(h) PRIOR DETERMINATION PROCESS FOR CERTAIN ITEMS AND
SERVICES.—
‘‘(1) ESTABLISHMENT OF PROCESS.—
‘‘(A) IN GENERAL.—With respect to a medicare adminis-
trative contractor that has a contract under section 1874A
that provides for making payments under this title with
respect to physicians’ services (as defined in section
1848(j)(3)), the Secretary shall establish a prior determina-
tion process that meets the requirements of this subsection
and that shall be applied by such contractor in the case
of eligible requesters.
‘‘(B) ELIGIBLE REQUESTER.—For purposes of this sub-
section, each of the following shall be an eligible requester:
‘‘(i) A participating physician, but only with respect
to physicians’ services to be furnished to an individual
who is entitled to benefits under this title and who
has consented to the physician making the request
under this subsection for those physicians’ services.
‘‘(ii) An individual entitled to benefits under this
title, but only with respect to a physicians’ service
for which the individual receives, from a physician,
an advance beneficiary notice under section 1879(a).
‘‘(2) SECRETARIAL FLEXIBILITY.—The Secretary shall estab-
lish by regulation reasonable limits on the physicians’ services
for which a prior determination of coverage may be requested
under this subsection. In establishing such limits, the Secretary
may consider the dollar amount involved with respect to the
physicians’ service, administrative costs and burdens, and other
relevant factors.
‘‘(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 request for a
determination, before the furnishing of a physicians’
service, as to whether the physicians’ service is covered
under this title consistent with the applicable requirements
of section 1862(a)(1)(A) (relating to medical necessity).
‘‘(B) ACCOMPANYING DOCUMENTATION.—The Secretary
may require that the request be accompanied by a descrip-
tion of the physicians’ service, supporting documentation
relating to the medical necessity for the physicians’ service,
and any other appropriate documentation. In the case of
a request submitted by an eligible requester who is
described in paragraph (1)(B)(ii), the Secretary may require
that the request also be accompanied by a copy of the
advance beneficiary notice involved.
‘‘(4) RESPONSE TO REQUEST.—
‘‘(A) IN GENERAL.—Under such process, the contractor
shall provide the eligible requester with written notice
of a determination as to whether—
‘‘(i) the physicians’ service is so covered;
‘‘(ii) the physicians’ service is not so covered; or
H. R. 1—349
‘‘(iii) the contractor lacks sufficient information to
make a coverage determination with respect to the
physicians’ service.
‘‘(B) CONTENTS OF NOTICE FOR CERTAIN DETERMINA-
TIONS.—
‘‘(i) NONCOVERAGE.—If the contractor makes the
determination described in subparagraph (A)(ii), the
contractor shall include in the notice a brief expla-
nation of the basis for the determination, including
on what national or local coverage or noncoverage
determination (if any) the determination is based, and
a description of any applicable rights under subsection
(a).
‘‘(ii) INSUFFICIENT INFORMATION.—If the contractor
makes the determination described in subparagraph
(A)(iii), the contractor shall include in the notice a
description of the additional information required to
make the coverage determination.
‘‘(C) DEADLINE TO RESPOND.—Such notice shall be pro-
vided within the same time period as the time period
applicable to the contractor providing notice of initial deter-
minations on a claim for benefits under subsection (a)(2)(A).
‘‘(D) INFORMING
BENEFICIARY
IN
CASE
OF
PHYSICIAN
REQUEST.—In the case of a request by a participating physi-
cian under paragraph (1)(B)(i), the process shall provide
that the individual to whom the physicians’ service is pro-
posed to be furnished shall be informed of any determina-
tion described in subparagraph (A)(ii) (relating to a deter-
mination of non-coverage) and the right (referred to in
paragraph (6)(B)) to obtain the physicians’ service and have
a claim submitted for the physicians’ service.
‘‘(5) BINDING NATURE OF POSITIVE DETERMINATION.—If the
contractor makes the determination described in paragraph
(4)(A)(i), such determination shall be binding on the contractor
in the absence of fraud or evidence of misrepresentation of
facts presented to the contractor.
‘‘(6) LIMITATION ON FURTHER REVIEW.—
‘‘(A) IN GENERAL.—Contractor determinations described
in paragraph (4)(A)(ii) or (4)(A)(iii) (relating to pre-service
claims) are not subject to further administrative appeal
or judicial review under this section or otherwise.
‘‘(B) DECISION NOT TO SEEK PRIOR DETERMINATION 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 physicians’ services;
or
‘‘(ii) seeks such a determination and has received
a determination described in paragraph (4)(A)(ii),
from receiving (and submitting a claim for) such physicians’
services and from obtaining administrative or judicial
review respecting such claim under the other applicable
provisions of this section. Failure to seek a prior determina-
tion under this subsection with respect to physicians’
H. R. 1—350
service shall not be taken into account in such administra-
tive or judicial review.
‘‘(C) NO PRIOR DETERMINATION AFTER RECEIPT OF SERV-
ICES.—Once an individual is provided physicians’ services,
there shall be no prior determination under this subsection
with respect to such physicians’ services.’’.
(b) EFFECTIVE DATE; SUNSET; 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 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) SUNSET.—Such prior determination process shall not
apply to requests filed after the end of the 5-year period begin-
ning on the first date on which requests for determinations
under such process are accepted.
(3) TRANSITION.—During the period in which the amend-
ment made by subsection (a) has become effective but contracts
are not provided under section 1874A of the Social Security
Act with medicare administrative contractors, 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 inter-
mediary or carrier with an agreement under section 1816,
or contract under section 1842, respectively, of such Act.
(4) LIMITATION ON APPLICATION TO SGR.—For purposes of
applying section 1848(f)(2)(D) of the Social Security 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 paragraph
(5)) 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 estab-
lish a program of outreach and education for beneficiaries 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
ON
USE
OF
ADVANCE
BENEFICIARY
NOTICES.—Not later than 18 months after the date on which
section 1869(h) of the Social Security Act (as added by sub-
section (a)) takes effect, the Comptroller General of the United
States shall submit to Congress a report on the use of advance
beneficiary notices under title 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 36 months after the date on which
section 1869(h) of the Social Security Act (as added by sub-
section (a)) takes effect, the Comptroller General of the United
States shall submit to Congress a report on the use of the
H. R. 1—351
prior determination process under such section. Such report
shall include—
(A) information concerning—
(i) the number and types of procedures for which
a prior determination has been sought;
(ii) determinations made under the process;
(iii) the percentage of beneficiaries prevailing;
(iv) in those cases in which the beneficiaries do
not prevail, the reasons why such beneficiaries did
not prevail; and
(v) changes in receipt of services resulting from
the application of such process;
(B) an evaluation of whether the process was useful
for physicians (and other suppliers) and beneficiaries,
whether it was timely, and whether the amount of informa-
tion required was burdensome to physicians and bene-
ficiaries; and
(C) recommendations for improvements or continuation
of such process.
(5) ADVANCE BENEFICIARY NOTICE DEFINED.—In this sub-
section, 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 individual entitled to benefits
under part A or enrolled under part 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.
SEC. 939. APPEALS BY PROVIDERS WHEN THERE IS NO OTHER PARTY
AVAILABLE.
(a) IN GENERAL.—Section 1870 (42 U.S.C. 1395gg) is amended
by adding at the end the following new subsection:
‘‘(h) Notwithstanding subsection (f) or any other provision of
law, the Secretary shall permit a provider of services or supplier
to appeal any determination of the Secretary under this title
relating to services rendered under this title to an individual who
subsequently dies if there is no other party available to appeal
such determination.’’.
(b) EFFECTIVE DATE.—The amendment made by subsection (a)
shall take effect on the date of the enactment of this Act and
shall apply to items and services furnished on or after such date.
SEC. 940. REVISIONS TO APPEALS TIMEFRAMES AND AMOUNTS.
(a) TIMEFRAMES.—Section 1869 (42 U.S.C. 1395ff) is amended—
(1) in subsection (a)(3)(C)(ii), by striking ‘‘30-day period’’
each place it appears and inserting ‘‘60-day period’’; and
(2) in subsection (c)(3)(C)(i), by striking ‘‘30-day period’’
and inserting ‘‘60-day period’’.
(b) AMOUNTS.—
(1) 
IN
GENERAL.—Section 
1869(b)(1)(E) 
(42 
U.S.C.
1395ff(b)(1)(E)) is amended by adding at the end the following
new clause:
‘‘(iii) ADJUSTMENT
OF
DOLLAR
AMOUNTS.—For
requests for hearings or judicial review made in a
year after 2004, the dollar amounts specified in clause
(i) shall be equal to such dollar amounts increased