S 2999 IS

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.

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

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'.

END