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S.2999
Health Care Provider Bill of Rights (Introduced in the
Senate)
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-
`(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:
`(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.
`(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-
`(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.
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