Title II: Reform of Appeals Process - Permits appeal of overpayment determinations under certain conditions.
(Sec. 202) Amends SSA title XVIII with regard to: (1) time lines for appeals; and (2) suspension of certain activities while appeals are pending.
(Sec. 203) Directs the Secretary of Health and Human Services (HHS) to permit any health care provider to appeal any determination of the Secretary under the Medicare program on behalf of a deceased beneficiary where no substitute party is available.
(Sec. 205) Makes any determination of the Departmental Appeals Board of the HHS Department under the Medicare program have national precedential value with respect to any determination of an administrative law judge under such program.
(Sec. 206) Amends Federal money and finance law with regard to requirements for affirmative appeal of Health Care Financing Administration (HCFA) actions.
(Sec. 207) Requires the Comptroller General to conduct an audit for a report to Congress on: (1) the statistical validity of random sample audits conducted under Medicare before the enactment of this Act; (2) the necessity of such audits for specified purposes; and (3) the effects of the applications of such audits to health care providers.
Title III: Reform of Overpayment Procedure - Amends SSA title XVIII to prohibit: (1) retroactive overpayment determinations; (2) sampling audits to reduce future reimbursements; (3) recovery of past overpayment by certain means; and (4) recovery of past overpayments if appeal pending.
Title IV: Reform of Voluntary Disclosure Procedure - Directs the Secretary and the Attorney General to establish, by regulation, voluntary disclosure procedures that apply with respect to any potential violations of Federal criminal, civil, or administrative laws by a health care provider under the Medicare program. Prohibits criminal prosecution under SSA title XI and no civil action under such title, Medicare, or under specified provisions of Federal money and finance law against a health care provider with respect to a matter that such provider has voluntarily disclosed in accordance with such regulations.
Title V: Criminal Law Enforcement Reforms - Amends the Federal criminal code to: (1) deny law enforcement authority to employees of the HHS Office of Inspector General; and (2) establish guidelines for search warrants on health care facilities.
Title VI: Provider Compliance Education - Mandates specified levels of funding for the stated purpose of ensuring that health care providers learn of new coverage, billing, documentation, and coding changes to Medicare laws and regulations in a timely manner.
(Sec. 601) States that health care providers have the right to information about such matters that are applicable to local carrier guidelines under Medicare. Provides that fiscal intermediaries and carriers will offer each health care provider the right to receive this information by electronic or certified mail.
Outlines requirements for additional educational outreach for health care providers for coverage, billing, documentation, and coding issues that have the most frequent billing errors.
(Sec. 602) Sets forth provisions regarding advisory opinions.
(Sec. 603) Amends SSA title XI to provide for an extension of existing advisory opinion provisions of law.
[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 2999 Introduced in Senate (IS)]
106th CONGRESS
2d Session
S. 2999
To amend title XVIII of the Social Security Act to reform the
regulatory processes used by the Health Care Financing Administration
to administer the medicare program, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
July 27, 2000
Mr. Abraham (for himself, Mr. Cochran, and Mr. Grams) introduced the
following bill; which was read twice and referred to the Committee on
Finance
_______________________________________________________________________
A BILL
To amend title XVIII of the Social Security Act to reform the
regulatory processes used by the Health Care Financing Administration
to administer the medicare program, and for other purposes.
Be it enacted by the Senate and House of Representatives 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 ``Health Care
Provider Bill of Rights''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
TITLE I--REFORM OF HCFA REGULATORY PROCESS
Sec. 101. Prospective application of certain regulations.
Sec. 102. Notice and hearing requirements for certain interim final
regulations.
Sec. 103. GAO Audit and report on compliance with certain statutory
administrative procedure requirements.
Sec. 104. Requirements for judicial and regulatory challenges of
regulations.
Sec. 105. Reform of national coverage determination process.
TITLE II--REFORM OF APPEALS PROCESS
Sec. 201. Appeal of overpayment determinations.
Sec. 202. Time lines for appeals.
Sec. 203. Right to appeal on behalf of deceased beneficiaries.
Sec. 204. Suspension of certain activities while appeals are pending.
Sec. 205. National precedence of departmental appeals board
determinations.
Sec. 206. Requirements for affirmative appeal of HCFA actions.
Sec. 207. GAO audit of random sample audits.
TITLE III--REFORM OF OVERPAYMENT PROCEDURE
Sec. 301. Prohibition of retroactive overpayment determinations.
Sec. 302. Prohibition of sampling audits to reduce future
reimbursements.
Sec. 303. Prohibition of recovering past overpayments by certain means.
Sec. 304. Prohibition of recovering past overpayments if appeal
pending.
TITLE IV--REFORM OF VOLUNTARY DISCLOSURE PROCEDURE
Sec. 401. Promulgation of joint voluntary disclosure procedures.
TITLE V--CRIMINAL LAW ENFORCEMENT REFORMS
Sec. 501. No law enforcement authority for employees of the Office of
Inspector General of the Department of
Health and Human Services.
Sec. 502. Search warrants on health care facilities.
TITLE VI--PROVIDER COMPLIANCE EDUCATION
Sec. 601. Education.
Sec. 602. Advisory opinions.
SEC. 2. DEFINITIONS.
In this Act:
(1) 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.
(2) Fiscal intermediary.--The term ``fiscal intermediary''
means a fiscal intermediary (as defined in section 1816(a) of
the Social Security Act (42 U.S.C. 1395h(a))) with an agreement
under section 1816 of such Act to administer benefits under
part A or part B of such title.
(3) HCFA.--The term ``HCFA'' means the Health Care
Financing Administration.
(4) Health care provider.--The term ``health care
provider'' means any individual or entity participating in the
medicare program, including a Medicare+Choice organization
under part C of such program.
(5) Medicare program.--The term ``medicare program'' means
the health benefits program under title XVIII of the Social
Security Act (42 U.S.C. 1395 et seq.).
(6) Secretary.--The term ``Secretary'' means the Secretary
of Health and Human Services.
TITLE I--REFORM OF HCFA REGULATORY PROCESS
SEC. 101. PROSPECTIVE APPLICATION OF CERTAIN REGULATIONS.
Section 1871(a) of the Social Security Act (42 U.S.C. 1395hh(a)) is
amended by adding at the end the following new paragraph:
``(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.''.
SEC. 102. NOTICE AND HEARING REQUIREMENTS FOR CERTAIN INTERIM FINAL
REGULATIONS.
Section 1871(a) of the Social Security Act (42 U.S.C. 1395hh(a)),
as amended by section 101, is amended by adding at the end the
following new paragraph:
``(4) In prescribing any interim final regulation described
under paragraph (2)--
``(A) the Secretary shall provide notice and a
hearing in accordance with section 553(b) of title 5,
United States Code; and
``(B) subparagraph (B) of the sentence following
section 553(b)(3) of such title shall not apply.''.
SEC. 103. GAO AUDIT AND REPORT ON COMPLIANCE WITH CERTAIN STATUTORY
ADMINISTRATIVE PROCEDURE REQUIREMENTS.
(a) Audit.--The Comptroller General of the United States shall
conduct an audit of the compliance of the Health Care Financing
Administration and all regulations promulgated by the Department of
Health and Human Resources under statutes administered by the Health
Care Financing Administration with--
(1) the provisions of such statutes;
(2) subchapter II of chapter 5 of title 5, United States
Code (including section 553 of such title); and
(3) chapter 6 of title 5, United States Code.
(b) Report.--Not later than 18 months after the date of enactment
of this Act, the Comptroller General shall submit to Congress a report
on the audit conducted under subsection (a), together with such
recommendations for legislative and administrative action as the
Comptroller General determines appropriate.
SEC. 104. REQUIREMENTS FOR JUDICIAL AND REGULATORY CHALLENGES OF
REGULATIONS.
(a) Right To Challenge Constitutionality and Statutory Authority of
HCFA Regulations.--Section 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 Administration 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 sections 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 Secretary's
regulations or policies;
``(B) the Secretary's statutory authority to
promulgate such regulations or policies; or
``(C) a finding of good cause under subparagraph
(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 paragraph:
``(3) For purposes of applying paragraph (1), an institution 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; and
``(B) the Secretary has imposed or may impose a remedy,
penalty, or other sanction on the institution or agency in
connection with such determination.''.
SEC. 105. REFORM OF NATIONAL COVERAGE DETERMINATION PROCESS.
(a) In General.--Section 1871(a) of the Social Security Act (42
U.S.C. 1395hh(a)), as amended by section 102, is amended by adding at
the end the following new paragraph:
``(5) In the case of any national coverage determination,
the Secretary shall provide for--
``(A) notice of the proposed national coverage
determination in the Federal Register; and
``(B) a period of not less than 30 days for public
comment thereon, during which--
``(i) any provider of services to present
comments in oral or written form to the
Medicare Coverage Advisory Committee or any
other official of the Health Care Financing
Administration responsible for making the
national coverage determination; and
``(ii) any other person may present
comments in written form to such Committee or
official.''.
(b) Effective Date.--The amendment made by subsection (a) shall
apply to national coverage determinations made on or after the date of
enactment of this Act.
TITLE II--REFORM OF APPEALS PROCESS
SEC. 201. APPEAL OF OVERPAYMENT DETERMINATIONS.
Notwithstanding sections 1870 and 1879 of the Social Security Act
(42 U.S.C. 1395gg and 1395pp) or any other provision of law, the
Secretary may not require a health care provider to waive any right
under the medicare program to appeal an overpayment determination of
the Secretary if such provider agrees to accept a stated dollar amount
potential projected overpayment.
SEC. 202. TIME LINES FOR APPEALS.
Section 1869 of the Social Security Act (42 U.S.C. 1395ff) is
amended--
(1) in subsection (a), by inserting ``consistent with
subsections (c) and (d)'' before the period; and
(2) by adding at the end the following new subsections:
``(c) Deadlines for Reconsiderations and Appeals Under Part A.--
Reconsideration and appeals under subsections (a) and (b) with respect
to matters under part A shall be conducted consistent with the
following deadlines:
``(1) Deadlines for administrative action.--
``(A) Reconsidered determination.--The Secretary
shall conduct and conclude a reconsideration of an
initial determination, and mail the notice of
reconsidered determination, by not later than the end
of the 60-day period beginning on the date a request
for reconsideration has been timely filed.
``(B) Hearing by administrative law judge.--
``(i) In general.--Except as provided in
clause (ii), an administrative law judge shall
conduct and conclude a hearing and render a
decision on such hearing by not later than the
end of the 90-day period beginning on the date
a request for hearing has been timely filed.
``(ii) Waiver of deadline by party seeking
hearing.--The 90-day period under clause (i)
shall not apply in the case of a motion or
stipulation by the party requesting the hearing
to waive such period.
``(C) Departmental appeals board review.--The
Departmental Appeals Board of the Department of Health
and Human Services shall conduct and conclude a review
of the decision on a hearing described in subparagraph
(B) and make a decision or remand the case to the
administrative law judge for reconsideration by not
later than the end of the 90-day period beginning on
the date a request for review has been timely filed.
``(2) Consequences of failure to meet deadlines.--
``(A) In general.--
``(i) Failure to notify.--In the case of a
failure by the Secretary to mail the notice of
reconsidered determination by the end of the
period described in paragraph (1)(A), the party
requesting the reconsideration may request a
hearing before an administrative law judge,
notwithstanding any requirements for a
reconsidered determination for purposes of the
party's right to such hearing.
``(ii) Failure of alj to decide.--In the
case of a failure by an administrative law
judge to render a decision by the end of the
period described in paragraph (1)(B), the party
requesting the hearing may request a review by
the Departmental Appeals Board of the
Department of Health and Human Services,
notwithstanding any requirements for a hearing
for purposes of the party's right to such a
review.
``(B) DAB hearing procedure.--In the case of a
request described in subparagraph (A)(ii), the
Departmental Appeals Board shall review the case de
novo.
``(d) Deadlines for Reviews and Appeals Under Part B.--Reviews and
appeals under subsections (a) and (b) with respect to matters under
part B shall be conducted consistent with the following deadlines:
``(1) Deadlines.--
``(A) Review of initial determination.--A carrier
shall conduct and conclude a review of an initial
determination, and mail the notice of review
determination, by not later than the end of the 60-day
period beginning on the date a request for review has
been timely filed.
``(B) Carrier hearing.--
``(i) Deadline for decision.--A carrier
shall conduct and conclude a hearing, and mail
the notice of the decision, by not later than
the end of the 60-day period beginning on the
date a request for a carrier hearing has been
timely filed.
``(ii) Option to proceed to hearing by
administrative law judge.--No carrier hearing
shall be held, and no requirement for a carrier
hearing shall apply, with respect to rights to
a hearing before an administrative law judge,
if the party to the carrier review elects a
hearing before an administrative law judge in
lieu of a carrier hearing.
``(C) Hearing by administrative law judge.--
``(i) In general.--Except as provided in
clause (ii), an administrative law judge shall
conduct and conclude a hearing and render a
decision on such hearing by not later than the
end of the 90-day period beginning on the date
a request for hearing has been timely filed.
``(ii) Waiver of deadline by party seeking
hearing.--The 90-day period under clause (i)
shall not apply in the case of a motion or
stipulation by the party requesting the hearing to waive such period.
``(D) Departmental appeals board review.--The
Departmental Appeals Board of the Department of Health
and Human Services shall conduct and conclude a review
of the decision on a hearing described in subparagraph
(C) and make a decision or remand the case to the
administrative law judge for reconsideration by not
later than the end of the 90-day period beginning on
the date a request for review has been timely filed.
``(2) Consequences of failure to meet deadlines.--
``(A) In general.--
``(i) Failure to notify.--In the case of a
failure by a carrier to mail notice within the
time period described in paragraph (A) or (B)
of paragraph (1), the party requesting the
review or carrier hearing (as the case may be)
may request a hearing before an administrative
law judge, notwithstanding any requirements for
a carrier review or a carrier hearing for
purposes of the party's right to a hearing
before such judge.
``(ii) Failure of alj to decide.--In the
case of a failure by an administrative law
judge to render a decision by the end of the
period described in paragraph (1)(C), the party
requesting the hearing may request a review by
the Departmental Appeals Board, notwithstanding
any requirements for a hearing for purposes of
the party's right to such a review.
``(B) DAB hearing procedure.--In the case of a
request described in subparagraph (A)(ii), the
Departmental Appeals Board shall review the case de
novo.''.
SEC. 203. RIGHT TO APPEAL ON BEHALF OF DECEASED BENEFICIARIES.
Notwithstanding section 1870 of the Social Security Act (42 U.S.C.
1395gg) or any other provision of law, the Secretary shall permit any
health care provider to appeal any determination of the Secretary under
the medicare program on behalf of a deceased beneficiary where no
substitute party is available.
SEC. 204. SUSPENSION OF CERTAIN ACTIVITIES WHILE APPEALS ARE PENDING.
(a) In General.--Section 1866 of the Social Security Act (42 U.S.C.
1395cc) is amended by adding at the end the following new subsection:
``(j) For purposes of subsections (b) and (c), the Secretary--
``(1) may not impose any sanction, terminate an agreement,
or refuse to renew such an agreement with a provider of
services under this title during the period in which any appeal
of such provider regarding a deficiency that is the basis of
such sanction, termination, or nonrenewal is pending;
``(2) may not publicly disseminate any information
regarding any deficiency of a provider of services that is the
subject of an appeal before such appeal is finally adjudicated;
and
``(3) shall permit any provider of services to appeal a
surveyor deficiency of such provider that does not result in a
recommendation of termination.''.
(b) Effective Date.--The amendment made by subsection (a) shall
apply to agreements entered into or renewed on or after the date of the
enactment of this Act.
SEC. 205. NATIONAL PRECEDENCE OF DEPARTMENTAL APPEALS BOARD
DETERMINATIONS.
Notwithstanding any other provision of law, any determination of
the Departmental Appeals Board of the Department of Health and Human
Services under the medicare program shall have national precedential
value with respect to any determination of an administrative law judge
under such program.
SEC. 206. REQUIREMENTS FOR AFFIRMATIVE APPEAL OF HCFA ACTIONS.
(a) In General.--Subchapter III of chapter 37 of title 31, United
States Code, is amended by adding at the end the following new section:
``Sec. 3734. Rules for certain actions based on health care claims
``(a) In General.--In the case of any action that is brought under
this subchapter based on a claim submitted with respect to a federally
funded health care program, the preceding provisions of this subchapter
shall apply only to the extent that such provisions are consistent with
the provisions of this section.
``(b) Actions if Amount of Damages Are Material Amount.--
Notwithstanding the preceding sections of this subchapter, no action
may be brought under this subchapter based on a claim that is submitted
under a federally funded health care program unless the amount of
damages alleged to have been sustained by the United States Government
with respect to such claim is a material amount.
``(c) Actions for Claims Submitted in Reliance on Official
Guidance.--Notwithstanding the preceding sections of this subchapter,
no action may be brought under this subchapter based on a claim
submitted--
``(1) in reliance on (and correctly using) erroneous
information supplied by a Federal agency (or an agent thereof)
about matters of fact at issue; or
``(2) in reliance on (and correctly applying) written
statements of Federal policy which affects such claim provided
by a Federal agency (or an agent thereof).
``(d) Standard of Proof.--In any action brought under this
subchapter with respect to a claim submitted to a federally funded
health care program, section 3731(c) shall be applied by substituting
`clear and convincing evidence' for `a preponderance of the evidence'.
``(e) Rule of Construction.--Nothing in this section shall be
construed as limiting the authority of the Government of the United
States to recoup or otherwise recover damages with respect to a claim
submitted to a federally funded health care program under provisions of
law other than this subchapter.
``(f) Definitions; Related Rules.--For purposes of this section--
``(1) the term `claim' means a claim (as defined in section
3729(c)) made with respect to a federally funded health care
program;
``(2) the term `damages' means the amount of any
overpayment made by the United States Government with respect
to a claim;
``(3) the term `federally funded health care program' means
a program that provides health benefits, whether directly,
through the purchase of insurance, or otherwise, that is
established under--
``(A) title XVIII, XIX, or XXI of the Social
Security Act, or
``(B) title 10, of this Code; and
``(4)(A) the amount of damages alleged to have been
sustained by the United States Government with respect to a
claim submitted by (or on behalf of) a person shall be treated
as a `material amount' only if such amount exceeds a proportion
(specified in regulations promulgated by the Secretary in
consultation with the Secretary of Defense) of the total of the
amounts for which claims were submitted by (or on behalf of)
such person--
``(i) to the same federally funded health care
program, and
``(ii) for the same calendar year,
as the claim upon which an action under this subchapter is
based;
``(B) the regulations specifying the proportion referred to
in paragraph (4) shall be based on the definition of the term
`material' used by the American Institute of Certified Public
Accountants as of the date of the enactment of this section;
and
``(C) in determining whether an amount of damages is a
`material amount' under subparagraph (A), with respect to a
person--
``(i) the amount of damages for more than 1 claim
may be aggregated only if the acts or omissions
resulting in such damages were part of a pattern of
related acts or omissions by such person, and
``(ii) if damages for more than 1 claim are
aggregated in accordance with clause (i), the
proportion referred to in such subparagraph shall be
determined by comparing the amount of such aggregate
damages to the total of the amounts for which claims
were submitted by (or on behalf of) such person to the
same federally funded health care program for each of
the calendar years for which any claim upon which such
aggregate damages were based was submitted.''.
(b) Conforming Amendment.--The table of sections for chapter 37 of
title 31, United States Code, is amended by adding after the item
relating to section 3733 the following new item:
``3734. Rules for certain actions based on health care claims.''.
(c) Effective Date.--The amendment made by subsection (a) shall
apply to actions brought under subchapter III of chapter 37 of title
31, United States Code, with respect to claims submitted before, on,
and after the date of the enactment of this Act.
SEC. 207. GAO AUDIT OF RANDOM SAMPLE AUDITS.
(a) Audit.--The Comptroller General of the United States shall
conduct an audit to determine--
(1) the statistical validity of random sample audits
conducted under the medicare program before the date of the
enactment of this Act;
(2) the necessity of such audits for purposes of
administering sections 1815(a), 1842(a), 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)); and
(3) the effects of the application of such audits to health
care providers under sections 1842(b), 1866(a)(1)(B)(ii), 1870,
and 1893 of such Act (42 U.S.C. 1395u(a), 1395cc(a)(1)(B)(ii),
1395gg, and 1395ddd).
(b) Report.--Not later than 18 months after the date of the
enactment of this Act, the Comptroller General shall submit to Congress
a report on the audit conducted under subsection (a), together with
such recommendations for legislative and administrative action as the
Comptroller General determines appropriate.
TITLE III--REFORM OF OVERPAYMENT PROCEDURE
SEC. 301. PROHIBITION OF RETROACTIVE OVERPAYMENT DETERMINATIONS.
(a) In General.--Section 1870 of the Social Security Act (42 U.S.C.
1395gg) is amended by adding at the end the following new subsection:
``(h)(1)(A) For purposes of applying the 3-year limitation under
subsections (b) and (c), sections 1842(b)(3)(B)(ii) and
1866(a)(1)(B)(ii), the Secretary may only revise a determination that
more than the correct amount has been paid under this title to a
provider of services or other person for any item or service furnished
to an individual in accordance with subparagraph (B).
``(B) The Secretary may revise a determination that more than the
correct amount has been paid under this title to a provider of services
or other person for any item or service furnished to an individual--
``(i) within 12 months from the date of the notice of the
determination to the party to such determination; or
``(ii) after the 12-month period described in clause (i),
but within 3 years after the date of the notice of the initial
determination to the individual, upon establishment of good
cause for reopening such determination.
``(2) Notwithstanding the 3-year limitation under subsections (b)
and (c), and sections 1842(b)(3)(B)(ii) and 1866(a)(1)(B)(ii), the
Secretary may revise a determination that more than the correct amount
has been paid under this title to a provider of services or other
person for any item or service furnished to an individual at any time
if such determination--
``(A) is unfavorable to a provider of services or other
person to which the overpayment was made, but only for the
purpose of correcting clerical error or error on the face of
the evidence on which such determination was based; or
``(B) was procured by fraud or similar fault of the
beneficiary or some other individual other than the provider of
services or other person to which such overpayment was made.
``(3) For purposes of making any revision under paragraph (1) or
(2), the Secretary shall apply regulations in effect at the time the
overpayment was made.''.
(b) Effective Date.--The amendment made by subsection (a) shall
apply to overpayment determinations made on or after the date of the
enactment of this Act.
SEC. 302. PROHIBITION OF SAMPLING AUDITS TO REDUCE FUTURE
REIMBURSEMENTS.
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
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,
1395ddd), the Secretary may not determine the amount of any overpayment
or underpayment based on a sampling audit (including any determination
based on the rate of denied claims of such provider), unless the
Secretary finds clear and convincing evidence of fraud or similar fault
on the part of such provider.
SEC. 303. PROHIBITION OF RECOVERING PAST OVERPAYMENTS BY CERTAIN MEANS.
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 adjust any payments to a health
care provider on account of a previously made overpayment unless the
Secretary finds clear and convincing evidence of fraud or similar fault
on the part of such provider.
SEC. 304. PROHIBITION OF RECOVERING PAST OVERPAYMENTS 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, 1395ddd), the Secretary may not take any action (or authorize
any other person, including any fiscal intermediary, carrier, and
entity with a contract under section 1893 of such Act (42 U.S.C.
1395ddd)) to recoup an overpayment during the period in which a health
care provider may appeal a determination that such an overpayment has
been made or the amount of the overpayment.
TITLE IV--REFORM OF VOLUNTARY DISCLOSURE PROCEDURE
SEC. 401. PROMULGATION OF JOINT VOLUNTARY DISCLOSURE PROCEDURES.
(a) Voluntary Disclosure.--No criminal prosecution under title XI
of the Social Security Act (42 U.S.C. 1301 et seq.) and no civil action
under such title, the medicare program, or section 3729, 3730, or 3731
of title 31, United States Code, may be instituted against a health
care provider with respect to a matter that such provider has
voluntarily disclosed in accordance with the regulations promulgated
under subsection (b).
(b) Regulations.--
(1) Promulgation.--The Secretary and the Attorney General,
acting jointly, shall establish, by regulation, voluntary
disclosure procedures that apply with respect to any potential
violations of Federal criminal, civil, or administrative laws
by a health care provider under the Medicare program.
(2) Health care provider immunity.--The regulations
promulgated under paragraph (1) shall provide that, unless the
Secretary establishes by independently obtained clear and
convincing evidence that such potential violation is the result
of criminal fraud or similar fault on the part of a health care
provider, such provider shall be immune from any action
described in paragraph (3) if such provider reports such
potential violation in accordance with the regulations
promulgated under paragraph (1) before a record or information
request is issued by a fiscal intermediary, carrier, entity
with a contract under section 1893 of the Social Security Act,
Federal law enforcement agency, or other appropriate official
with regards to an investigation for such potential violation;
and
(3) Action described.--An action described in this section
is any--
(A) criminal prosecution or civil action under
title XI of the Social Security Act (42 U.S.C. 1301 et
seq.);
(B) civil action under the medicare program; or
(C) civil action for false claims under sections
3729, 3730, or 3731 of title 31, United States Code.
TITLE V--CRIMINAL LAW ENFORCEMENT REFORMS
SEC. 501. NO LAW ENFORCEMENT AUTHORITY FOR EMPLOYEES OF THE OFFICE OF
INSPECTOR GENERAL OF THE DEPARTMENT OF HEALTH AND HUMAN
SERVICES.
(a) In General.--Chapter 203 of title 18, United States Code, is
amended by adding at the end the following new section:
``Sec. 3064. No law enforcement authority for employees of the Office
of Inspector General of the Department of Health and
Human Services
``Notwithstanding any other provision of law, no employee of the
Office of Inspector General of the Department of Health and Human
Services may--
``(1) be deputized or carry out any law enforcement
activity, including the execution of a search warrant or the
making of an arrest without a warrant; or
``(2) carry a firearm in carrying out any official duty of
that employee.''.
(b) Technical and Conforming Amendment.--The analysis for chapter
203 of title 18, United States Code, is amended by adding at the end
the following new item:
``3064. No law enforcement authority for employees of the Office of
Inspector General of the Department of
Health and Human Services.''.
SEC. 502. SEARCH WARRANTS ON HEALTH CARE FACILITIES.
(a) In General.--Chapter 205 of title 18, United States Code, is
amended by adding at the end the following new section:
``Sec. 3119. Search warrants on health care facilities
``(a) Definition.--In this section--
``(1) the term `health care facility' means any facility at
which direct patient care is routinely conducted or at which
confidential medical records are maintained; and
``(2) the term `officer' means any person authorized to
serve a search warrant under section 3105.
``(b) Application for Warrant.--
``(1) In general.--Notwithstanding any other provision of
law, an application for a search warrant on a health care
facility may not be made without the express approval of the
Assistant Attorney General for the Criminal Division of the
Department of Justice that includes the information required
under paragraph (2), after consultation by the Assistant
Attorney General with the chief of the fraud section of such
Division in accordance with that paragraph.
``(2) Consultation.--The consultation required by paragraph
(1) shall include a discussion of, and any subsequent approval
by the Assistant Attorney General under that paragraph to apply
for the search warrant and shall require the inclusion in the
application of, specific information regarding the proposed
search, including--
``(A) the intended target or targets;
``(B) the potential violation or violations of law
being investigated;
``(C) a brief factual summary;
``(D) a description of the premises to be searched;
``(E) any records, information, and objects to be
searched;
``(F) the reasons why less intrusive means are
unavailable or unreasonable;
``(G) the procedures to be followed in conducting
the search to protect patient safety and ensure
uninterrupted delivery of health care services; and
``(H) procedures to be followed in conducting the
search to protect the confidentiality of patient
records and to provide the health care facility the
opportunity to copy documents that are confiscated.
``(3) Contents of application.--Notwithstanding any other
provision of law, an application for a search warrant on a
health care facility shall contain a draft search warrant.
``(c) Execution of Warrant.--Notwithstanding any other provision of
law, an officer executing a search warrant on a health care facility--
``(1) shall take the least intrusive approach, consistent
with vigorous and effective law enforcement, after giving
consideration to obtaining information from other sources or
through subpoenas (with the prior approval of the Assistant
United States Attorney for the appropriate district);
``(2) if the search is conducted in a patient care area,
shall abide by instructions of the health care facility
specific to patient safety, including using special equipment
and protective clothing, and complying with specific
procedures;
``(3) shall make every effort to avoid entering a critical
care or patient care room, or a patient room; and
``(4) shall not disrupt any employee providing direct
patient care or remove any employee from a patient care area,
except to protect the safety of the employee, a patient, or the
officer.''.
(b) Technical and Conforming Amendment.--The analysis for chapter
205 of title 18, United States Code, is amended by adding at the end
the following new item:
``3119. Search warrants on health care facilities.''.
TITLE VI--PROVIDER COMPLIANCE EDUCATION
SEC. 601. EDUCATION.
(a) Use of Funds.--
(1) Carriers.--Each carrier shall devote at least 3 percent
of the funds provided to it under the medicare program each
year (beginning with 2001) toward education of health care
providers to ensure that information about the operation of the
medicare program is properly disseminated to provider,
supplier, and physician.
(2) Fiscal intermediaries.--Each fiscal intermediary shall
devote at least 3 percent of the funds provided it under the
medicare program (beginning with 2001) toward education of
health care providers to ensure that information about the
operation of the medicare program is properly disseminated.
(3) Medicare integrity program.--The Secretary shall ensure
that 10 percent of the funds expended under the medicare
integrity program each year (beginning with 2001) are used for
education of health care providers to ensure that information
about the operation of the medicare program is properly
disseminated.
(4) Purpose.--The purpose of funding under this subsection
is to ensure that health care providers learn of new coverage,
billing, documentation, and coding changes to medicare laws and
regulations in a timely manner.
(5) Construction.--Education attendance lists or inquiries
may not be used as evidence of possible wrongdoings by health
care providers under the medicare program and may not lead to
fraud investigations under that program.
(b) Right to Information.--Health care providers have the right to
timely and accurate information about coverage, billing, documentation,
and coding changes and modifications to local carrier guidelines under
the medicare program. Fiscal intermediaries and carriers will offer
each health care provider the right to receive this information by
electronic or certified mail (in addition to check stuffers, monthly
carrier bulletins, the annual ``Dear Doctor'' letter, individual
letters, seminars, and other means).
(c) Additional Educational Outreach.--
(1) In general.--The Secretary shall initiate additional
educational outreach for health care providers for coverage,
billing, documentation, and coding issues that have the most
frequent billing errors. Such outreach shall include issue-
specific e-mails, faxes, mailings, and telephone calls.
(2) In-person visits.--If, within 9 months after the date
that the additional outreach is initiated under paragraph (1),
a carrier finds that no evidence exists that health care
provider billing errors under the medicare program have
lessened, then the carrier shall complete an in-person visit to
relevant health care providers, within three months.
(d) Right to Telephone Conversation.--A health care provider may
request a telephone conversation or in-person visit with a carrier,
without being suspected of fraud, regarding questions about coverage,
documentation, coding or billing practices under the medicare program.
SEC. 602. ADVISORY OPINIONS.
(a) Straight Answers.--Fiscal intermediaries and carriers shall do
their utmost to provide health care providers with one, straight and
correct answer regarding billing and cost reporting questions under the
medicare program, and will, when requested, give their true first and
last names to providers.
(b) Written Requests.--
(1) In general.--The Secretary shall establish a process
under which a health care provider may request, in writing from
a fiscal intermediary or carrier, assistance in addressing
questionable coverage, billing, documentation, coding and cost
reporting procedures under the medicare program and then the
fiscal intermediary or carrier shall respond in writing within
30 business days with the correct billing or procedural answer.
(2) Use of written statement.--
(A) In general.--Subject to subparagraph (B), a
written statement under paragraph (1) may be used as
proof against a future audit or overpayment under the
medicare program.
(B) Limit on application.--Subparagraph (A) shall
not apply retroactively and shall not apply to cases of
fraudulent billing.
SEC. 603. EXTENSION OF EXISTING ADVISORY OPINION PROVISIONS OF LAW.
Section 11280(b)(6) of the Social Security Act (42 U.S.C.
1320(b)(6)) shall be amended by striking, ``and before the date which
is 4 years after August 21, 1996''.
<all>
Introduced in Senate
Read twice and referred to the Committee on Finance.
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