US Laws - Affordable Health Care Act (HR3950F)
TITLE VI--TRANSPARENCY AND PROGRAM INTEGRITY
Subtitle E--Medicare, Medicaid, and CHIP Program Integrity Provisions

Subtitle E--Medicare, Medicaid, and CHIP Program Integrity Provisions (9727)(1-click HTML)

SEC. 6401. PROVIDER SCREENING AND OTHER ENROLLMENT REQUIREMENTS UNDER MEDICARE, MEDICAID, AND CHIP. (9728)(1-click HTML)

(a) Medicare- Section 1866(j) of the Social Security Act (42 U.S.C. 1395cc(j)) is amended-- (9729)

(1) in paragraph (1)(A), by adding at the end the following: "Such process shall include screening of providers and suppliers in accordance with paragraph (2), a provisional period of enhanced oversight in accordance with paragraph (3), disclosure requirements in accordance with paragraph (4), the imposition of temporary enrollment moratoria in accordance with paragraph (5), and the establishment of compliance programs in accordance with paragraph (6)."; (9730)

(2) by redesignating paragraph (2) as paragraph (7); and (9731)

(3) by inserting after paragraph (1) the following: (9732)

"(2) PROVIDER SCREENING- (9733)

"(A) PROCEDURES- Not later than 180 days after the date of enactment of this paragraph, the Secretary, in consultation with the Inspector General of the Department of Health and Human Services, shall establish procedures under which screening is conducted with respect to providers of medical or other items or services and suppliers under the program under this title, the Medicaid program under title XIX, and the CHIP program under title XXI. (9734)

"(B) LEVEL OF SCREENING- The Secretary shall determine the level of screening conducted under this paragraph according to the risk of fraud, waste, and abuse, as determined by the Secretary, with respect to the category of provider of medical or other items or services or supplier. Such screening-- (9735)

"(i) shall include a licensure check, which may include such checks across States; and (9736)

"(ii) may, as the Secretary determines appropriate based on the risk of fraud, waste, and abuse described in the preceding sentence, include-- (9737)

"(I) a criminal background check; (9738)

"(II) fingerprinting; (9739)

"(III) unscheduled and unannounced site visits, including preenrollment site visits; (9740)

"(IV) database checks (including such checks across States); and (9741)

"(V) such other screening as the Secretary determines appropriate. (9742)

"(C) APPLICATION FEES- (9743)

"(i) INDIVIDUAL PROVIDERS- Except as provided in clause (iii), the Secretary shall impose a fee on each individual provider of medical or other items or services or supplier (such as a physician, physician assistant, nurse practitioner, or clinical nurse specialist) with respect to which screening is conducted under this paragraph in an amount equal to-- (9744)

"(I) for 2010, $200; and (9745)

"(II) for 2011 and each subsequent year, the amount determined under this clause for the preceding year, adjusted by the percentage change in the consumer price index for all urban consumers (all items; United States city average) for the 12-month period ending with June of the previous year. (9746)

"(ii) INSTITUTIONAL PROVIDERS- Except as provided in clause (iii), the Secretary shall impose a fee on each institutional provider of medical or other items or services or supplier (such as a hospital or skilled nursing facility) with respect to which screening is conducted under this paragraph in an amount equal to-- (9747)

"(I) for 2010, $500; and (9748)

"(II) for 2011 and each subsequent year, the amount determined under this clause for the preceding year, adjusted by the percentage change in the consumer price index for all urban consumers (all items; United States city average) for the 12-month period ending with June of the previous year. (9749)

"(iii) HARDSHIP EXCEPTION; WAIVER FOR CERTAIN MEDICAID PROVIDERS- The Secretary may, on a case-by-case basis, exempt a provider of medical or other items or services or supplier from the imposition of an application fee under this subparagraph if the Secretary determines that the imposition of the application fee would result in a hardship. The Secretary may waive the application fee under this subparagraph for providers enrolled in a State Medicaid program for whom the State demonstrates that imposition of the fee would impede beneficiary access to care. (9750)

"(iv) USE OF FUNDS- Amounts collected as a result of the imposition of a fee under this subparagraph shall be used by the Secretary for program integrity efforts, including to cover the costs of conducting screening under this paragraph and to carry out this subsection and section 1128J. (9751)

"(D) APPLICATION AND ENFORCEMENT- (9752)

"(i) NEW PROVIDERS OF SERVICES AND SUPPLIERS- The screening under this paragraph shall apply, in the case of a provider of medical or other items or services or supplier who is not enrolled in the program under this title, title XIX , or title XXI as of the date of enactment of this paragraph, on or after the date that is 1 year after such date of enactment. (9753)

"(ii) CURRENT PROVIDERS OF SERVICES AND SUPPLIERS- The screening under this paragraph shall apply, in the case of a provider of medical or other items or services or supplier who is enrolled in the program under this title, title XIX, or title XXI as of such date of enactment, on or after the date that is 2 years after such date of enactment. (9754)

"(iii) REVALIDATION OF ENROLLMENT- Effective beginning on the date that is 180 days after such date of enactment, the screening under this paragraph shall apply with respect to the revalidation of enrollment of a provider of medical or other items or services or supplier in the program under this title, title XIX, or title XXI. (9755)

"(iv) LIMITATION ON ENROLLMENT AND REVALIDATION OF ENROLLMENT- In no case may a provider of medical or other items or services or supplier who has not been screened under this paragraph be initially enrolled or reenrolled in the program under this title, title XIX, or title XXI on or after the date that is 3 years after such date of enactment. (9756)

"(E) EXPEDITED RULEMAKING- The Secretary may promulgate an interim final rule to carry out this paragraph. (9757)

"(3) PROVISIONAL PERIOD OF ENHANCED OVERSIGHT FOR NEW PROVIDERS OF SERVICES AND SUPPLIERS- (9758)

"(A) IN GENERAL- The Secretary shall establish procedures to provide for a provisional period of not less than 30 days and not more than 1 year during which new providers of medical or other items or services and suppliers, as the Secretary determines appropriate, including categories of providers or suppliers, would be subject to enhanced oversight, such as prepayment review and payment caps, under the program under this title, the Medicaid program under title XIX. and the CHIP program under title XXI. (9759)

"(B) IMPLEMENTATION- The Secretary may establish by program instruction or otherwise the procedures under this paragraph. (9760)

"(4) INCREASED DISCLOSURE REQUIREMENTS- (9761)

"(A) DISCLOSURE- A provider of medical or other items or services or supplier who submits an application for enrollment or revalidation of enrollment in the program under this title, title XIX, or title XXI on or after the date that is 1 year after the date of enactment of this paragraph shall disclose (in a form and manner and at such time as determined by the Secretary) any current or previous affiliation (directly or indirectly) with a provider of medical or other items or services or supplier that has uncollected debt, has been or is subject to a payment suspension under a Federal health care program (as defined in section 1128B(f)), has been excluded from participation under the program under this title, the Medicaid program under title XIX, or the CHIP program under title XXI, or has had its billing privileges denied or revoked. (9762)

"(B) AUTHORITY TO DENY ENROLLMENT- If the Secretary determines that such previous affiliation poses an undue risk of fraud, waste, or abuse, the Secretary may deny such application. Such a denial shall be subject to appeal in accordance with paragraph (7). (9763)

"(5) AUTHORITY TO ADJUST PAYMENTS OF PROVIDERS OF SERVICES AND SUPPLIERS WITH THE SAME TAX IDENTIFICATION NUMBER FOR PAST-DUE OBLIGATIONS- (9764)

"(A) IN GENERAL- Notwithstanding any other provision of this title, in the case of an applicable provider of services or supplier, the Secretary may make any necessary adjustments to payments to the applicable provider of services or supplier under the program under this title in order to satisfy any past-due obligations described in subparagraph (B)(ii) of an obligated provider of services or supplier. (9765)

"(B) DEFINITIONS- In this paragraph: (9766)

"(i) IN GENERAL- The term "applicable provider of services or supplier" means a provider of services or supplier that has the same taxpayer identification number assigned under section 6109 of the Internal Revenue Code of 1986 as is assigned to the obligated provider of services or supplier under such section, regardless of whether the applicable provider of services or supplier is assigned a different billing number or national provider identification number under the program under this title than is assigned to the obligated provider of services or supplier. (9767)

"(ii) OBLIGATED PROVIDER OF SERVICES OR SUPPLIER- The term "obligated provider of services or supplier" means a provider of services or supplier that owes a past-due obligation under the program under this title (as determined by the Secretary). (9768)

"(6) TEMPORARY MORATORIUM ON ENROLLMENT OF NEW PROVIDERS- (9769)

"(A) IN GENERAL- The Secretary may impose a temporary moratorium on the enrollment of new providers of services and suppliers, including categories of providers of services and suppliers, in the program under this title, under the Medicaid program under title XIX, or under the CHIP program under title XXI if the Secretary determines such moratorium is necessary to prevent or combat fraud, waste, or abuse under either such program. (9770)

"(B) LIMITATION ON REVIEW- There shall be no judicial review under section 1869, section 1878, or otherwise, of a temporary moratorium imposed under subparagraph (A). (9771)

"(7) COMPLIANCE PROGRAMS- (9772)

"(A) IN GENERAL- On or after the date of implementation determined by the Secretary under subparagraph (C), a provider of medical or other items or services or supplier within a particular industry sector or category shall, as a condition of enrollment in the program under this title, title XIX, or title XXI, establish a compliance program that contains the core elements established under subparagraph (B) with respect to that provider or supplier and industry or category. (9773)

"(B) ESTABLISHMENT OF CORE ELEMENTS- The Secretary, in consultation with the Inspector General of the Department of Health and Human Services, shall establish core elements for a compliance program under subparagraph (A) for providers or suppliers within a particular industry or category. (9774)

"(C) TIMELINE FOR IMPLEMENTATION- The Secretary shall determine the timeline for the establishment of the core elements under subparagraph (B) and the date of the implementation of subparagraph (A) for providers or suppliers within a particular industry or category. The Secretary shall, in determining such date of implementation, consider the extent to which the adoption of compliance programs by a provider of medical or other items or services or supplier is widespread in a particular industry sector or with respect to a particular provider or supplier category.". (9775)

(b) Medicaid- (9776)

(1) STATE PLAN AMENDMENT- Section 1902(a) of the Social Security Act (42 U.S.C. 1396a(a)), as amended by section 4302(b), is amended-- (9777)

(A) in subsection (a)-- (9778)

(i) by striking "and" at the end of paragraph (75); (9779)

(ii) by striking the period at the end of paragraph (76) and inserting a semicolon; and (9780)

(iii) by inserting after paragraph (76) the following: (9781)

"(77) provide that the State shall comply with provider and supplier screening, oversight, and reporting requirements in accordance with subsection (ii);"; and (9782)

(B) by adding at the end the following: (9783)

"(ii) Provider and Supplier Screening, Oversight, and Reporting Requirements- For purposes of subsection (a)(77), the requirements of this subsection are the following: (9784)

"(1) SCREENING- The State complies with the process for screening providers and suppliers under this title, as established by the Secretary under section 1886(j)(2). (9785)

"(2) PROVISIONAL PERIOD OF ENHANCED OVERSIGHT FOR NEW PROVIDERS AND SUPPLIERS- The State complies with procedures to provide for a provisional period of enhanced oversight for new providers and suppliers under this title, as established by the Secretary under section 1886(j)(3). (9786)

"(3) DISCLOSURE REQUIREMENTS- The State requires providers and suppliers under the State plan or under a waiver of the plan to comply with the disclosure requirements established by the Secretary under section 1886(j)(4). (9787)

"(4) TEMPORARY MORATORIUM ON ENROLLMENT OF NEW PROVIDERS OR SUPPLIERS- (9788)

"(A) TEMPORARY MORATORIUM IMPOSED BY THE SECRETARY- (9789)

"(i) IN GENERAL- Subject to clause (ii), the State complies with any temporary moratorium on the enrollment of new providers or suppliers imposed by the Secretary under section 1886(j)(6). (9790)

"(ii) EXCEPTION- A State shall not be required to comply with a temporary moratorium described in clause (i) if the State determines that the imposition of such temporary moratorium would adversely impact beneficiaries" access to medical assistance. (9791)

"(B) MORATORIUM ON ENROLLMENT OF PROVIDERS AND SUPPLIERS- At the option of the State, the State imposes, for purposes of entering into participation agreements with providers or suppliers under the State plan or under a waiver of the plan, periods of enrollment moratoria, or numerical caps or other limits, for providers or suppliers identified by the Secretary as being at high-risk for fraud, waste, or abuse as necessary to combat fraud, waste, or abuse, but only if the State determines that the imposition of any such period, cap, or other limits would not adversely impact beneficiaries" access to medical assistance. (9792)

"(5) COMPLIANCE PROGRAMS- The State requires providers and suppliers under the State plan or under a waiver of the plan to establish, in accordance with the requirements of section 1866(j)(7), a compliance program that contains the core elements established under subparagraph (B) of that section 1866(j)(7) for providers or suppliers within a particular industry or category. (9793)

"(6) REPORTING OF ADVERSE PROVIDER ACTIONS- The State complies with the national system for reporting criminal and civil convictions, sanctions, negative licensure actions, and other adverse provider actions to the Secretary, through the Administrator of the Centers for Medicare & Medicaid Services, in accordance with regulations of the Secretary. (9794)

"(7) ENROLLMENT AND NPI OF ORDERING OR REFERRING PROVIDERS- The State requires-- (9795)

"(A) all ordering or referring physicians or other professionals to be enrolled under the State plan or under a waiver of the plan as a participating provider; and (9796)

"(B) the national provider identifier of any ordering or referring physician or other professional to be specified on any claim for payment that is based on an order or referral of the physician or other professional. (9797)

"(8) OTHER STATE OVERSIGHT- Nothing in this subsection shall be interpreted to preclude or limit the ability of a State to engage in provider and supplier screening or enhanced provider and supplier oversight activities beyond those required by the Secretary.". (9798)

(2) DISCLOSURE OF MEDICARE TERMINATED PROVIDERS AND SUPPLIERS TO STATES- The Administrator of the Centers for Medicare & Medicaid Services shall establish a process for making available to the each State agency with responsibility for administering a State Medicaid plan (or a waiver of such plan) under title XIX of the Social Security Act or a child health plan under title XXI the name, national provider identifier, and other identifying information for any provider of medical or other items or services or supplier under the Medicare program under title XVIII or under the CHIP program under title XXI that is terminated from participation under that program within 30 days of the termination (and, with respect to all such providers or suppliers who are terminated from the Medicare program on the date of enactment of this Act, within 90 days of such date). (9799)

(3) CONFORMING AMENDMENT- Section 1902(a)(23) of the Social Security Act (42 U.S.C. 1396a), is amended by inserting before the semicolon at the end the following: "or by a provider or supplier to which a moratorium under subsection (ii)(4) is applied during the period of such moratorium". (9800)

(c) CHIP- Section 2107(e)(1) of the Social Security Act (42 U.S.C. 1397gg(e)(1)), as amended by section 2101(d), is amended-- (9801)

(1) by redesignating subparagraphs (D) through (M) as subparagraphs (E) through (N), respectively; and (9802)

(2) by inserting after subparagraph (C), the following: (9803)

"(D) Subsections (a)(77) and (ii) of section 1902 (relating to provider and supplier screening, oversight, and reporting requirements).". (9804)

SEC. 6402. ENHANCED MEDICARE AND MEDICAID PROGRAM INTEGRITY PROVISIONS. (9805)(1-click HTML)

(a) In General- Part A of title XI of the Social Security Act (42 U.S.C. 1301 et seq.), as amended by sections 6002, 6004, and 6102, is amended by inserting after section 1128I the following new section: (9806)

SEC. 1128J. MEDICARE AND MEDICAID PROGRAM INTEGRITY PROVISIONS. (9807)

"(a) Data Matching- (9808)

"(1) INTEGRATED DATA REPOSITORY- (9809)

"(A) INCLUSION OF CERTAIN DATA- (9810)

"(i) IN GENERAL- The Integrated Data Repository of the Centers for Medicare & Medicaid Services shall include, at a minimum, claims and payment data from the following: (9811)

"(I) The programs under titles XVIII and XIX (including parts A, B, C, and D of title XVIII). (9812)

"(II) The program under title XXI. (9813)

"(III) Health-related programs administered by the Secretary of Veterans Affairs. (9814)

"(IV) Health-related programs administered by the Secretary of Defense. (9815)

"(V) The program of old-age, survivors, and disability insurance benefits established under title II. (9816)

"(VI) The Indian Health Service and the Contract Health Service program. (9817)

"(ii) PRIORITY FOR INCLUSION OF CERTAIN DATA- Inclusion of the data described in subclause (I) of such clause in the Integrated Data Repository shall be a priority. Data described in subclauses (II) through (VI) of such clause shall be included in the Integrated Data Repository as appropriate. (9818)

"(B) DATA SHARING AND MATCHING- (9819)

"(i) IN GENERAL- The Secretary shall enter into agreements with the individuals described in clause (ii) under which such individuals share and match data in the system of records of the respective agencies of such individuals with data in the system of records of the Department of Health and Human Services for the purpose of identifying potential fraud, waste, and abuse under the programs under titles XVIII and XIX. (9820)

"(ii) INDIVIDUALS DESCRIBED- The following individuals are described in this clause: (9821)

"(I) The Commissioner of Social Security. (9822)

"(II) The Secretary of Veterans Affairs. (9823)

"(III) The Secretary of Defense. (9824)

"(IV) The Director of the Indian Health Service. (9825)

"(iii) DEFINITION OF SYSTEM OF RECORDS- For purposes of this paragraph, the term "system of records" has the meaning given such term in section 552a(a)(5) of title 5, United States Code. (9826)

"(2) ACCESS TO CLAIMS AND PAYMENT DATABASES- For purposes of conducting law enforcement and oversight activities and to the extent consistent with applicable information, privacy, security, and disclosure laws, including the regulations promulgated under the Health Insurance Portability and Accountability Act of 1996 and section 552a of title 5, United States Code, and subject to any information systems security requirements under such laws or otherwise required by the Secretary, the Inspector General of the Department of Health and Human Services and the Attorney General shall have access to claims and payment data of the Department of Health and Human Services and its contractors related to titles XVIII, XIX, and XXI. (9827)

"(b) OIG Authority To Obtain Information- (9828)

"(1) IN GENERAL- Notwithstanding and in addition to any other provision of law, the Inspector General of the Department of Health and Human Services may, for purposes of protecting the integrity of the programs under titles XVIII and XIX, obtain information from any individual (including a beneficiary provided all applicable privacy protections are followed) or entity that-- (9829)

"(A) is a provider of medical or other items or services, supplier, grant recipient, contractor, or subcontractor; or (9830)

"(B) directly or indirectly provides, orders, manufactures, distributes, arranges for, prescribes, supplies, or receives medical or other items or services payable by any Federal health care program (as defined in section 1128B(f)) regardless of how the item or service is paid for, or to whom such payment is made. (9831)

"(2) INCLUSION OF CERTAIN INFORMATION- Information which the Inspector General may obtain under paragraph (1) includes any supporting documentation necessary to validate claims for payment or payments under title XVIII or XIX, including a prescribing physician"s medical records for an individual who is prescribed an item or service which is covered under part B of title XVIII, a covered part D drug (as defined in section 1860D-2(e)) for which payment is made under an MA-PD plan under part C of such title, or a prescription drug plan under part D of such title, and any records necessary for evaluation of the economy, efficiency, and effectiveness of the programs under titles XVIII and XIX. (9832)

"(c) Administrative Remedy for Knowing Participation by Beneficiary in Health Care Fraud Scheme- (9833)

"(1) IN GENERAL- In addition to any other applicable remedies, if an applicable individual has knowingly participated in a Federal health care fraud offense or a conspiracy to commit a Federal health care fraud offense, the Secretary shall impose an appropriate administrative penalty commensurate with the offense or conspiracy. (9834)

"(2) APPLICABLE INDIVIDUAL- For purposes of paragraph (1), the term "applicable individual" means an individual-- (9835)

"(A) entitled to, or enrolled for, benefits under part A of title XVIII or enrolled under part B of such title; (9836)

"(B) eligible for medical assistance under a State plan under title XIX or under a waiver of such plan; or (9837)

"(C) eligible for child health assistance under a child health plan under title XXI. (9838)

"(d) Reporting and Returning of Overpayments- (9839)

"(1) IN GENERAL- If a person has received an overpayment, the person shall-- (9840)

"(A) report and return the overpayment to the Secretary, the State, an intermediary, a carrier, or a contractor, as appropriate, at the correct address; and (9841)

"(B) notify the Secretary, State, intermediary, carrier, or contractor to whom the overpayment was returned in writing of the reason for the overpayment. (9842)

"(2) DEADLINE FOR REPORTING AND RETURNING OVERPAYMENTS- An overpayment must be reported and returned under paragraph (1) by the later of-- (9843)

"(A) the date which is 60 days after the date on which the overpayment was identified; or (9844)

"(B) the date any corresponding cost report is due, if applicable. (9845)

"(3) ENFORCEMENT- Any overpayment retained by a person after the deadline for reporting and returning the overpayment under paragraph (2) is an obligation (as defined in section 3729(b)(3) of title 31, United States Code) for purposes of section 3729 of such title. (9846)

"(4) DEFINITIONS- In this subsection: (9847)

"(A) KNOWING AND KNOWINGLY- The terms "knowing" and "knowingly" have the meaning given those terms in section 3729(b) of title 31, United States Code. (9848)

"(B) OVERPAYMENT- The term "overpayment" means any funds that a person receives or retains under title XVIII or XIX to which the person, after applicable reconciliation, is not entitled under such title. (9849)

"(C) PERSON- (9850)

"(i) IN GENERAL- The term "person" means a provider of services, supplier, medicaid managed care organization (as defined in section 1903(m)(1)(A)), Medicare Advantage organization (as defined in section 1859(a)(1)), or PDP sponsor (as defined in section 1860D-41(a)(13)). (9851)

"(ii) EXCLUSION- Such term does not include a beneficiary. (9852)

"(e) Inclusion of National Provider Identifier on All Applications and Claims- The Secretary shall promulgate a regulation that requires, not later than January 1, 2011, all providers of medical or other items or services and suppliers under the programs under titles XVIII and XIX that qualify for a national provider identifier to include their national provider identifier on all applications to enroll in such programs and on all claims for payment submitted under such programs.". (9853)

(b) Access to Data- (9854)

(1) MEDICARE PART D- Section 1860D-15(f)(2) of the Social Security Act (42 U.S.C. 1395w-116(f)(2)) is amended by striking "may be used by" and all that follows through the period at the end and inserting "may be used-- (9855)

"(A) by officers, employees, and contractors of the Department of Health and Human Services for the purposes of, and to the extent necessary in-- (9856)

"(i) carrying out this section; and (9857)

"(ii) conducting oversight, evaluation, and enforcement under this title; and (9858)

"(B) by the Attorney General and the Comptroller General of the United States for the purposes of, and to the extent necessary in, carrying out health oversight activities.". (9859)

(2) DATA MATCHING- Section 552a(a)(8)(B) of title 5, United States Code, is amended-- (9860)

(A) in clause (vii), by striking "or" at the end; (9861)

(B) in clause (viii), by inserting "or" after the semicolon; and (9862)

(C) by adding at the end the following new clause: (9863)

"(ix) matches performed by the Secretary of Health and Human Services or the Inspector General of the Department of Health and Human Services with respect to potential fraud, waste, and abuse, including matches of a system of records with non-Federal records;". (9864)

(3) MATCHING AGREEMENTS WITH THE COMMISSIONER OF SOCIAL SECURITY- Section 205(r) of the Social Security Act (42 U.S.C. 405(r)) is amended by adding at the end the following new paragraph: (9865)

"(9)(A) The Commissioner of Social Security shall, upon the request of the Secretary or the Inspector General of the Department of Health and Human Services-- (9866)

"(i) enter into an agreement with the Secretary or such Inspector General for the purpose of matching data in the system of records of the Social Security Administration and the system of records of the Department of Health and Human Services; and (9867)

"(ii) include in such agreement safeguards to assure the maintenance of the confidentiality of any information disclosed. (9868)

"(B) For purposes of this paragraph, the term "system of records" has the meaning given such term in section 552a(a)(5) of title 5, United States Code.". (9869)

(c) Withholding of Federal Matching Payments for States That Fail To Report Enrollee Encounter Data in the Medicaid Statistical Information System- Section 1903(i) of the Social Security Act (42 U.S.C. 1396b(i)) is amended-- (9870)

(1) in paragraph (23), by striking "or" at the end; (9871)

(2) in paragraph (24), by striking the period at the end and inserting "; or"; and (9872)

(3) by adding at the end the following new paragraph:. (9873)

"(25) with respect to any amounts expended for medical assistance for individuals for whom the State does not report enrollee encounter data (as defined by the Secretary) to the Medicaid Statistical Information System (MSIS) in a timely manner (as determined by the Secretary).". (9874)

(d) Permissive Exclusions and Civil Monetary Penalties- (9875)

(1) PERMISSIVE EXCLUSIONS- Section 1128(b) of the Social Security Act (42 U.S.C. 1320a-7(b)) is amended by adding at the end the following new paragraph: (9876)

"(16) MAKING FALSE STATEMENTS OR MISREPRESENTATION OF MATERIAL FACTS- Any individual or entity that knowingly makes or causes to be made any false statement, omission, or misrepresentation of a material fact in any application, agreement, bid, or contract to participate or enroll as a provider of services or supplier under a Federal health care program (as defined in section 1128B(f)), including Medicare Advantage organizations under part C of title XVIII, prescription drug plan sponsors under part D of title XVIII, medicaid managed care organizations under title XIX, and entities that apply to participate as providers of services or suppliers in such managed care organizations and such plans.". (9877)

(2) CIVIL MONETARY PENALTIES- (9878)

(A) IN GENERAL- Section 1128A(a) of the Social Security Act (42 U.S.C. 1320a-7a(a)) is amended-- (9879)

(i) in paragraph (1)(D), by striking "was excluded" and all that follows through the period at the end and inserting "was excluded from the Federal health care program (as defined in section 1128B(f)) under which the claim was made pursuant to Federal law."; (9880)

(ii) in paragraph (6), by striking "or" at the end; (9881)

(iii) by inserting after paragraph (7), the following new paragraphs: (9882)

"(8) orders or prescribes a medical or other item or service during a period in which the person was excluded from a Federal health care program (as so defined), in the case where the person knows or should know that a claim for such medical or other item or service will be made under such a program; (9883)

"(9) knowingly makes or causes to be made any false statement, omission, or misrepresentation of a material fact in any application, bid, or contract to participate or enroll as a provider of services or a supplier under a Federal health care program (as so defined), including Medicare Advantage organizations under part C of title XVIII, prescription drug plan sponsors under part D of title XVIII, medicaid managed care organizations under title XIX, and entities that apply to participate as providers of services or suppliers in such managed care organizations and such plans; (9884)

"(10) knows of an overpayment (as defined in paragraph (4) of section 1128J(d)) and does not report and return the overpayment in accordance with such section;"; (9885)

(iv) in the first sentence-- (9886)

(I) by striking the "or" after "prohibited relationship occurs;"; and (9887)

(II) by striking "act)" and inserting "act; or in cases under paragraph (9), $50,000 for each false statement or misrepresentation of a material fact)"; and (9888)

(v) in the second sentence, by striking "purpose)" and inserting "purpose; or in cases under paragraph (9), an assessment of not more than 3 times the total amount claimed for each item or service for which payment was made based upon the application containing the false statement or misrepresentation of a material fact)". (9889)

(B) CLARIFICATION OF TREATMENT OF CERTAIN CHARITABLE AND OTHER INNOCUOUS PROGRAMS- Section 1128A(i)(6) of the Social Security Act (42 U.S.C. 1320a-7a(i)(6)) is amended-- (9890)

(i) in subparagraph (C), by striking "or" at the end; (9891)

(ii) in subparagraph (D), as redesignated by section 4331(e) of the Balanced Budget Act of 1997 (Public Law 105-33), by striking the period at the end and inserting a semicolon; (9892)

(iii) by redesignating subparagraph (D), as added by section 4523(c) of such Act, as subparagraph (E) and striking the period at the end and inserting "; or"; and (9893)

(iv) by adding at the end the following new subparagraphs: (9894)

"(F) any other remuneration which promotes access to care and poses a low risk of harm to patients and Federal health care programs (as defined in section 1128B(f) and designated by the Secretary under regulations); (9895)

"(G) the offer or transfer of items or services for free or less than fair market value by a person, if-- (9896)

"(i) the items or services consist of coupons, rebates, or other rewards from a retailer; (9897)

"(ii) the items or services are offered or transferred on equal terms available to the general public, regardless of health insurance status; and (9898)

"(iii) the offer or transfer of the items or services is not tied to the provision of other items or services reimbursed in whole or in part by the program under title XVIII or a State health care program (as defined in section 1128(h)); (9899)

"(H) the offer or transfer of items or services for free or less than fair market value by a person, if-- (9900)

"(i) the items or services are not offered as part of any advertisement or solicitation; (9901)

"(ii) the items or services are not tied to the provision of other services reimbursed in whole or in part by the program under title XVIII or a State health care program (as so defined); (9902)

"(iii) there is a reasonable connection between the items or services and the medical care of the individual; and (9903)

"(iv) the person provides the items or services after determining in good faith that the individual is in financial need; or (9904)

"(I) effective on a date specified by the Secretary (but not earlier than January 1, 2011), the waiver by a PDP sponsor of a prescription drug plan under part D of title XVIII or an MA organization offering an MA-PD plan under part C of such title of any copayment for the first fill of a covered part D drug (as defined in section 1860D-2(e)) that is a generic drug for individuals enrolled in the prescription drug plan or MA-PD plan, respectively.". (9905)

(e) Testimonial Subpoena Authority in Exclusion-only Cases- Section 1128(f) of the Social Security Act (42 U.S.C. 1320a-7(f)) is amended by adding at the end the following new paragraph: (9906)

"(4) The provisions of subsections (d) and (e) of section 205 shall apply with respect to this section to the same extent as they are applicable with respect to title II. The Secretary may delegate the authority granted by section 205(d) (as made applicable to this section) to the Inspector General of the Department of Health and Human Services for purposes of any investigation under this section.". (9907)

(f) Health Care Fraud- (9908)

(1) KICKBACKS- Section 1128B of the Social Security Act (42 U.S.C. 1320a-7b) is amended by adding at the end the following new subsection: (9909)

"(g) In addition to the penalties provided for in this section or section 1128A, a claim that includes items or services resulting from a violation of this section constitutes a false or fraudulent claim for purposes of subchapter III of chapter 37 of title 31, United States Code.". (9910)

(2) REVISING THE INTENT REQUIREMENT- Section 1128B of the Social Security Act (42 U.S.C. 1320a-7b), as amended by paragraph (1), is amended by adding at the end the following new subsection: (9911)

"(h) With respect to violations of this section, a person need not have actual knowledge of this section or specific intent to commit a violation of this section.". (9912)

(g) Surety Bond Requirements- (9913)

(1) DURABLE MEDICAL EQUIPMENT- Section 1834(a)(16)(B) of the Social Security Act (42 U.S.C. 1395m(a)(16)(B)) is amended by inserting "that the Secretary determines is commensurate with the volume of the billing of the supplier" before the period at the end. (9914)

(2) HOME HEALTH AGENCIES- Section 1861(o)(7)(C) of the Social Security Act (42 U.S.C. 1395x(o)(7)(C)) is amended by inserting "that the Secretary determines is commensurate with the volume of the billing of the home health agency" before the semicolon at the end. (9915)

(3) REQUIREMENTS FOR CERTAIN OTHER PROVIDERS OF SERVICES AND SUPPLIERS- Section 1862 of the Social Security Act (42 U.S.C. 1395y) is amended by adding at the end the following new subsection: (9916)

"(n) Requirement of a Surety Bond for Certain Providers of Services and Suppliers- (9917)

"(1) IN GENERAL- The Secretary may require a provider of services or supplier described in paragraph (2) to provide the Secretary on a continuing basis with a surety bond in a form specified by the Secretary in an amount (not less than $50,000) that the Secretary determines is commensurate with the volume of the billing of the provider of services or supplier. The Secretary may waive the requirement of a bond under the preceding sentence in the case of a provider of services or supplier that provides a comparable surety bond under State law. (9918)

"(2) PROVIDER OF SERVICES OR SUPPLIER DESCRIBED- A provider of services or supplier described in this paragraph is a provider of services or supplier the Secretary determines appropriate based on the level of risk involved with respect to the provider of services or supplier, and consistent with the surety bond requirements under sections 1834(a)(16)(B) and 1861(o)(7)(C).". (9919)

(h) Suspension of Medicare and Medicaid Payments Pending Investigation of Credible Allegations of Fraud- (9920)

(1) MEDICARE- Section 1862 of the Social Security Act (42 U.S.C. 1395y), as amended by subsection (g)(3), is amended by adding at the end the following new subsection: (9921)

"(o) Suspension of Payments Pending Investigation of Credible Allegations of Fraud- (9922)

"(1) IN GENERAL- The Secretary may suspend payments to a provider of services or supplier under this title pending an investigation of a credible allegation of fraud against the provider of services or supplier, unless the Secretary determines there is good cause not to suspend such payments. (9923)

"(2) CONSULTATION- The Secretary shall consult with the Inspector General of the Department of Health and Human Services in determining whether there is a credible allegation of fraud against a provider of services or supplier. (9924)

"(3) PROMULGATION OF REGULATIONS- The Secretary shall promulgate regulations to carry out this subsection and section 1903(i)(2)(C).". (9925)

(2) MEDICAID- Section 1903(i)(2) of such Act (42 U.S.C. 1396b(i)(2)) is amended-- (9926)

(A) in subparagraph (A), by striking "or" at the end; and (9927)

(B) by inserting after subparagraph (B), the following: (9928)

"(C) by any individual or entity to whom the State has failed to suspend payments under the plan during any period when there is pending an investigation of a credible allegation of fraud against the individual or entity, as determined by the State in accordance with regulations promulgated by the Secretary for purposes of section 1862(o) and this subparagraph, unless the State determines in accordance with such regulations there is good cause not to suspend such payments; or". (9929)

(i) Increased Funding To Fight Fraud and Abuse- (9930)

(1) IN GENERAL- Section 1817(k) of the Social Security Act (42 U.S.C. 1395i(k)) is amended-- (9931)

(A) by adding at the end the following new paragraph: (9932)

"(7) ADDITIONAL FUNDING- In addition to the funds otherwise appropriated to the Account from the Trust Fund under paragraphs (3) and (4) and for purposes described in paragraphs (3)(C) and (4)(A), there are hereby appropriated an additional $10,000,000 to such Account from such Trust Fund for each of fiscal years 2011 through 2020. The funds appropriated under this paragraph shall be allocated in the same proportion as the total funding appropriated with respect to paragraphs (3)(A) and (4)(A) was allocated with respect to fiscal year 2010, and shall be available without further appropriation until expended."; and (9933)

(B) in paragraph (4)(A), by inserting "until expended" after "appropriation". (9934)

(2) INDEXING OF AMOUNTS APPROPRIATED- (9935)

(A) DEPARTMENTS OF HEALTH AND HUMAN SERVICES AND JUSTICE- Section 1817(k)(3)(A)(i) of the Social Security Act (42 U.S.C. 1395i(k)(3)(A)(i)) is amended-- (9936)

(i) in subclause (III), by inserting "and" at the end; (9937)

(ii) in subclause (IV)-- (9938)

(I) by striking "for each of fiscal years 2007, 2008, 2009, and 2010" and inserting "for each fiscal year after fiscal year 2006"; and (9939)

(II) by striking "; and" and inserting a period; and (9940)

(iii) by striking subclause (V). (9941)

(B) OFFICE OF THE INSPECTOR GENERAL OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES- Section 1817(k)(3)(A)(ii) of such Act (42 U.S.C. 1395i(k)(3)(A)(ii)) is amended-- (9942)

(i) in subclause (VIII), by inserting "and" at the end; (9943)

(ii) in subclause (IX)-- (9944)

(I) by striking "for each of fiscal years 2008, 2009, and 2010" and inserting "for each fiscal year after fiscal year 2007"; and (9945)

(II) by striking "; and" and inserting a period; and (9946)

(iii) by striking subclause (X). (9947)

(C) FEDERAL BUREAU OF INVESTIGATION- Section 1817(k)(3)(B) of the Social Security Act (42 U.S.C. 1395i(k)(3)(B)) is amended-- (9948)

(i) in clause (vii), by inserting "and" at the end; (9949)

(ii) in clause (viii)-- (9950)

(I) by striking "for each of fiscal years 2007, 2008, 2009, and 2010" and inserting "for each fiscal year after fiscal year 2006"; and (9951)

(II) by striking "; and" and inserting a period; and (9952)

(iii) by striking clause (ix). (9953)

(D) MEDICARE INTEGRITY PROGRAM- Section 1817(k)(4)(C) of the Social Security Act (42 U.S.C. 1395i(k)(4)(C)) is amended by adding at the end the following new clause: (9954)

"(ii) For each fiscal year after 2010, by the percentage increase in the consumer price index for all urban consumers (all items; United States city average) over the previous year.". (9955)

(j) Medicare Integrity Program and Medicaid Integrity Program- (9956)

(1) MEDICARE INTEGRITY PROGRAM- (9957)

(A) REQUIREMENT TO PROVIDE PERFORMANCE STATISTICS- Section 1893(c) of the Social Security Act (42 U.S.C. 1395ddd(c)) is amended-- (9958)

(i) in paragraph (3), by striking "and" at the end; (9959)

(ii) by redesignating paragraph (4) as paragraph (5); and (9960)

(iii) by inserting after paragraph (3) the following new paragraph: (9961)

"(4) the entity agrees to provide the Secretary and the Inspector General of the Department of Health and Human Services with such performance statistics (including the number and amount of overpayments recovered, the number of fraud referrals, and the return on investment of such activities by the entity) as the Secretary or the Inspector General may request; and". (9962)

(B) EVALUATIONS AND ANNUAL REPORT- Section 1893 of the Social Security Act (42 U.S.C. 1395ddd) is amended by adding at the end the following new subsection: (9963)

"(i) Evaluations and Annual Report- (9964)

"(1) EVALUATIONS- The Secretary shall conduct evaluations of eligible entities which the Secretary contracts with under the Program not less frequently than every 3 years. (9965)

"(2) ANNUAL REPORT- Not later than 180 days after the end of each fiscal year (beginning with fiscal year 2011), the Secretary shall submit a report to Congress which identifies-- (9966)

"(A) the use of funds, including funds transferred from the Federal Hospital Insurance Trust Fund under section 1817 and the Federal Supplementary Insurance Trust Fund under section 1841, to carry out this section; and (9967)

"(B) the effectiveness of the use of such funds.". (9968)

(C) FLEXIBILITY IN PURSUING FRAUD AND ABUSE- Section 1893(a) of the Social Security Act (42 U.S.C. 1395ddd(a)) is amended by inserting ", or otherwise," after "entities". (9969)

(2) MEDICAID INTEGRITY PROGRAM- (9970)

(A) REQUIREMENT TO PROVIDE PERFORMANCE STATISTICS- Section 1936(c)(2) of the Social Security Act (42 U.S.C. 1396u-6(c)(2)) is amended-- (9971)

(i) by redesignating subparagraph (D) as subparagraph (E); and (9972)

(ii) by inserting after subparagraph (C) the following new subparagraph: (9973)

"(D) The entity agrees to provide the Secretary and the Inspector General of the Department of Health and Human Services with such performance statistics (including the number and amount of overpayments recovered, the number of fraud referrals, and the return on investment of such activities by the entity) as the Secretary or the Inspector General may request.". (9974)

(B) EVALUATIONS AND ANNUAL REPORT- Section 1936(e) of the Social Security Act (42 U.S.C. 1396u-7(e)) is amended-- (9975)

(i) by redesignating paragraph (4) as paragraph (5); and (9976)

(ii) by inserting after paragraph (3) the following new paragraph: (9977)

"(4) EVALUATIONS- The Secretary shall conduct evaluations of eligible entities which the Secretary contracts with under the Program not less frequently than every 3 years.". (9978)

(k) Expanded Application of Hardship Waivers for Exclusions- Section 1128(c)(3)(B) of the Social Security Act (42 U.S.C. 1320a-7(c)(3)(B)) is amended by striking "individuals entitled to benefits under part A of title XVIII or enrolled under part B of such title, or both" and inserting "beneficiaries (as defined in section 1128A(i)(5)) of that program". (9979)

SEC. 6403. ELIMINATION OF DUPLICATION BETWEEN THE HEALTHCARE INTEGRITY AND PROTECTION DATA BANK AND THE NATIONAL PRACTITIONER DATA BANK. (9980)(1-click HTML)

(a) Information Reported by Federal Agencies and Health Plans- Section 1128E of the Social Security Act (42 U.S.C. 1320a-7e) is amended-- (9981)

(1) by striking subsection (a) and inserting the following: (9982)

"(a) In General- The Secretary shall maintain a national health care fraud and abuse data collection program under this section for the reporting of certain final adverse actions (not including settlements in which no findings of liability have been made) against health care providers, suppliers, or practitioners as required by subsection (b), with access as set forth in subsection (d), and shall furnish the information collected under this section to the National Practitioner Data Bank established pursuant to the Health Care Quality Improvement Act of 1986 (42 U.S.C. 11101 et seq.)."; (9983)

(2) by striking subsection (d) and inserting the following: (9984)

"(d) Access to Reported Information- (9985)

"(1) AVAILABILITY- The information collected under this section shall be available from the National Practitioner Data Bank to the agencies, authorities, and officials which are provided under section 1921(b) information reported under section 1921(a). (9986)

"(2) FEES FOR DISCLOSURE- The Secretary may establish or approve reasonable fees for the disclosure of information under this section. The amount of such a fee may not exceed the costs of processing the requests for disclosure and of providing such information. Such fees shall be available to the Secretary to cover such costs."; (9987)

(3) by striking subsection (f) and inserting the following: (9988)

"(f) Appropriate Coordination- In implementing this section, the Secretary shall provide for the maximum appropriate coordination with part B of the Health Care Quality Improvement Act of 1986 (42 U.S.C. 11131 et seq.) and section 1921."; and (9989)

(4) in subsection (g)-- (9990)

(A) in paragraph (1)(A)-- (9991)

(i) in clause (iii)-- (9992)

(I) by striking "or State" each place it appears; (9993)

(II) by redesignating subclauses (II) and (III) as subclauses (III) and (IV), respectively; and (9994)

(III) by inserting after subclause (I) the following new subclause: (9995)

"(II) any dismissal or closure of the proceedings by reason of the provider, supplier, or practitioner surrendering their license or leaving the State or jurisdiction"; and (9996)

(ii) by striking clause (iv) and inserting the following: (9997)

"(iv) Exclusion from participation in a Federal health care program (as defined in section 1128B(f))."; (9998)

(B) in paragraph (3)-- (9999)

(i) by striking subparagraphs (D) and (E); and (10000)

(ii) by redesignating subparagraph (F) as subparagraph (D); and (10001)

(C) in subparagraph (D) (as so redesignated), by striking "or State". (10002)

(b) Information Reported by State Law or Fraud Enforcement Agencies- Section 1921 of the Social Security Act (42 U.S.C. 1396r-2) is amended-- (10003)

(1) in subsection (a)-- (10004)

(A) in paragraph (1)-- (10005)

(i) by striking "SYSTEM- The State" and all that follows through the semicolon and inserting SYSTEM- (10006)

"(A) LICENSING OR CERTIFICATION ACTIONS- The State must have in effect a system of reporting the following information with respect to formal proceedings (as defined by the Secretary in regulations) concluded against a health care practitioner or entity by a State licensing or certification agency:"; (10007)

(ii) by redesignating subparagraphs (A) through (D) as clauses (i) through (iv), respectively, and indenting appropriately; (10008)

(iii) in subparagraph (A)(iii) (as so redesignated)-- (10009)

(I) by striking "the license of" and inserting "license or the right to apply for, or renew, a license by"; and (10010)

(II) by inserting "nonrenewability," after "voluntary surrender,"; and (10011)

(iv) by adding at the end the following new subparagraph: (10012)

"(B) OTHER FINAL ADVERSE ACTIONS- The State must have in effect a system of reporting information with respect to any final adverse action (not including settlements in which no findings of liability have been made) taken against a health care provider, supplier, or practitioner by a State law or fraud enforcement agency."; and (10013)

(B) in paragraph (2), by striking "the authority described in paragraph (1)" and inserting "a State licensing or certification agency or State law or fraud enforcement agency"; (10014)

(2) in subsection (b)-- (10015)

(A) by striking paragraph (2) and inserting the following: (10016)

"(2) to State licensing or certification agencies and Federal agencies responsible for the licensing and certification of health care providers, suppliers, and licensed health care practitioners;"; (10017)

(B) in each of paragraphs (4) and (6), by inserting ", but only with respect to information provided pursuant to subsection (a)(1)(A)" before the comma at the end; (10018)

(C) by striking paragraph (5) and inserting the following: (10019)

"(5) to State law or fraud enforcement agencies,"; (10020)

(D) by redesignating paragraphs (7) and (8) as paragraphs (8) and (9), respectively; and (10021)

(E) by inserting after paragraph (6) the following new paragraph: (10022)

"(7) to health plans (as defined in section 1128C(c));"; (10023)

(3) by redesignating subsection (d) as subsection (h), and by inserting after subsection (c) the following new subsections: (10024)

"(d) Disclosure and Correction of Information- (10025)

"(1) DISCLOSURE- With respect to information reported pursuant to subsection (a)(1), the Secretary shall-- (10026)

"(A) provide for disclosure of the information, upon request, to the health care practitioner who, or the entity that, is the subject of the information reported; and (10027)

"(B) establish procedures for the case where the health care practitioner or entity disputes the accuracy of the information reported. (10028)

"(2) CORRECTIONS- Each State licensing or certification agency and State law or fraud enforcement agency shall report corrections of information already reported about any formal proceeding or final adverse action described in subsection (a), in such form and manner as the Secretary prescribes by regulation. (10029)

"(e) Fees for Disclosure- The Secretary may establish or approve reasonable fees for the disclosure of information under this section. The amount of such a fee may not exceed the costs of processing the requests for disclosure and of providing such information. Such fees shall be available to the Secretary to cover such costs. (10030)

"(f) Protection From Liability for Reporting- No person or entity, including any agency designated by the Secretary in subsection (b), shall be held liable in any civil action with respect to any reporting of information as required under this section, without knowledge of the falsity of the information contained in the report. (10031)

"(g) References- For purposes of this section: (10032)

"(1) STATE LICENSING OR CERTIFICATION AGENCY- The term "State licensing or certification agency" includes any authority of a State (or of a political subdivision thereof) responsible for the licensing of health care practitioners (or any peer review organization or private accreditation entity reviewing the services provided by health care practitioners) or entities. (10033)

"(2) STATE LAW OR FRAUD ENFORCEMENT AGENCY- The term "State law or fraud enforcement agency" includes-- (10034)

"(A) a State law enforcement agency; and (10035)

"(B) a State medicaid fraud control unit (as defined in section 1903(q)). (10036)

"(3) FINAL ADVERSE ACTION- (10037)

"(A) IN GENERAL- Subject to subparagraph (B), the term "final adverse action" includes-- (10038)

"(i) civil judgments against a health care provider, supplier, or practitioner in State court related to the delivery of a health care item or service; (10039)

"(ii) State criminal convictions related to the delivery of a health care item or service; (10040)

"(iii) exclusion from participation in State health care programs (as defined in section 1128(h)); (10041)

"(iv) any licensing or certification action described in subsection (a)(1)(A) taken against a supplier by a State licensing or certification agency; and (10042)

"(v) any other adjudicated actions or decisions that the Secretary shall establish by regulation. (10043)

"(B) EXCEPTION- Such term does not include any action with respect to a malpractice claim."; and (10044)

(4) in subsection (h), as so redesignated, by striking "The Secretary" and all that follows through the period at the end and inserting "In implementing this section, the Secretary shall provide for the maximum appropriate coordination with part B of the Health Care Quality Improvement Act of 1986 (42 U.S.C. 11131 et seq.) and section 1128E.". (10045)

(c) Conforming Amendment- Section 1128C(a)(1) of the Social Security Act (42 U.S.C. 1320a-7c(a)(1)) is amended-- (10046)

(1) in subparagraph (C), by adding "and" after the comma at the end; (10047)

(2) in subparagraph (D), by striking ", and" and inserting a period; and (10048)

(3) by striking subparagraph (E). (10049)

(d) Transition Process; Effective Date- (10050)

(1) IN GENERAL- Effective on the date of enactment of this Act, the Secretary of Health and Human Services (in this section referred to as the "Secretary") shall implement a transition process under which, by not later than the end of the transition period described in paragraph (5), the Secretary shall cease operating the Healthcare Integrity and Protection Data Bank established under section 1128E of the Social Security Act (as in effect before the effective date specified in paragraph (6)) and shall transfer all data collected in the Healthcare Integrity and Protection Data Bank to the National Practitioner Data Bank established pursuant to the Health Care Quality Improvement Act of 1986 (42 U.S.C. 11101 et seq.). During such transition process, the Secretary shall have in effect appropriate procedures to ensure that data collection and access to the Healthcare Integrity and Protection Data Bank and the National Practitioner Data Bank are not disrupted. (10051)

(2) REGULATIONS- The Secretary shall promulgate regulations to carry out the amendments made by subsections (a) and (b). (10052)

(3) FUNDING- (10053)

(A) AVAILABILITY OF FEES- Fees collected pursuant to section 1128E(d)(2) of the Social Security Act prior to the effective date specified in paragraph (6) for the disclosure of information in the Healthcare Integrity and Protection Data Bank shall be available to the Secretary, without fiscal year limitation, for payment of costs related to the transition process described in paragraph (1). Any such fees remaining after the transition period is complete shall be available to the Secretary, without fiscal year limitation, for payment of the costs of operating the National Practitioner Data Bank. (10054)

(B) AVAILABILITY OF ADDITIONAL FUNDS- In addition to the fees described in subparagraph (A), any funds available to the Secretary or to the Inspector General of the Department of Health and Human Services for a purpose related to combating health care fraud, waste, or abuse shall be available to the extent necessary for operating the Healthcare Integrity and Protection Data Bank during the transition period, including systems testing and other activities necessary to ensure that information formerly reported to the Healthcare Integrity and Protection Data Bank will be accessible through the National Practitioner Data Bank after the end of such transition period. (10055)

(4) SPECIAL PROVISION FOR ACCESS TO THE NATIONAL PRACTITIONER DATA BANK BY THE DEPARTMENT OF VETERANS AFFAIRS- (10056)

(A) IN GENERAL- Notwithstanding any other provision of law, during the 1-year period that begins on the effective date specified in paragraph (6), the information described in subparagraph (B) shall be available from the National Practitioner Data Bank to the Secretary of Veterans Affairs without charge. (10057)

(B) INFORMATION DESCRIBED- For purposes of subparagraph (A), the information described in this subparagraph is the information that would, but for the amendments made by this section, have been available to the Secretary of Veterans Affairs from the Healthcare Integrity and Protection Data Bank. (10058)

(5) TRANSITION PERIOD DEFINED- For purposes of this subsection, the term "transition period" means the period that begins on the date of enactment of this Act and ends on the later of-- (10059)

(A) the date that is 1 year after such date of enactment; or (10060)

(B) the effective date of the regulations promulgated under paragraph (2). (10061)

(6) EFFECTIVE DATE- The amendments made by subsections (a), (b), and (c) shall take effect on the first day after the final day of the transition period. (10062)

SEC. 6404. MAXIMUM PERIOD FOR SUBMISSION OF MEDICARE CLAIMS REDUCED TO NOT MORE THAN 12 MONTHS. (10063)(1-click HTML)

(a) Reducing Maximum Period for Submission- (10064)

(1) PART A- Section 1814(a) of the Social Security Act (42 U.S.C. 1395f(a)(1)) is amended-- (10065)

(A) in paragraph (1), by striking "period of 3 calendar years" and all that follows through the semicolon and inserting "period ending 1 calendar year after the date of service;"; and (10066)

(B) by adding at the end the following new sentence: "In applying paragraph (1), the Secretary may specify exceptions to the 1 calendar year period specified in such paragraph." (10067)

(2) PART B- (10068)

(A) Section 1842(b)(3) of such Act (42 U.S.C. 1395u(b)(3)(B)) is amended-- (10069)

(i) in subparagraph (B), in the flush language following clause (ii), by striking "close of the calendar year following the year in which such service is furnished (deeming any service furnished in the last 3 months of any calendar year to have been furnished in the succeeding calendar year)" and inserting "period ending 1 calendar year after the date of service"; and (10070)

(ii) by adding at the end the following new sentence: "In applying subparagraph (B), the Secretary may specify exceptions to the 1 calendar year period specified in such subparagraph." (10071)

(B) Section 1835(a) of such Act (42 U.S.C. 1395n(a)) is amended-- (10072)

(i) in paragraph (1), by striking "period of 3 calendar years" and all that follows through the semicolon and inserting "period ending 1 calendar year after the date of service;"; and (10073)

(ii) by adding at the end the following new sentence: "In applying paragraph (1), the Secretary may specify exceptions to the 1 calendar year period specified in such paragraph." (10074)

(b) Effective Date- (10075)

(1) IN GENERAL- The amendments made by subsection (a) shall apply to services furnished on or after January 1, 2010. (10076)

(2) SERVICES FURNISHED BEFORE 2010- In the case of services furnished before January 1, 2010, a bill or request for payment under section 1814(a)(1), 1842(b)(3)(B), or 1835(a) shall be filed not later that December 31, 2010. (10077)

SEC. 6405. PHYSICIANS WHO ORDER ITEMS OR SERVICES REQUIRED TO BE MEDICARE ENROLLED PHYSICIANS OR ELIGIBLE PROFESSIONALS. (10078)(1-click HTML)

(a) DME- Section 1834(a)(11)(B) of the Social Security Act (42 U.S.C. 1395m(a)(11)(B)) is amended by striking "physician" and inserting "physician enrolled under section 1866(j) or an eligible professional under section 1848(k)(3)(B) that is enrolled under section 1866(j)". (10079)

(b) Home Health Services- (10080)

(1) PART A- Section 1814(a)(2) of such Act (42 U.S.C. 1395(a)(2)) is amended in the matter preceding subparagraph (A) by inserting "in the case of services described in subparagraph (C), a physician enrolled under section 1866(j) or an eligible professional under section 1848(k)(3)(B)," before "or, in the case of services". (10081)

(2) PART B- Section 1835(a)(2) of such Act (42 U.S.C. 1395n(a)(2)) is amended in the matter preceding subparagraph (A) by inserting ", or in the case of services described in subparagraph (A), a physician enrolled under section 1866(j) or an eligible professional under section 1848(k)(3)(B)," after "a physician". (10082)

(c) Application to Other Items or Services- The Secretary may extend the requirement applied by the amendments made by subsections (a) and (b) to durable medical equipment and home health services (relating to requiring certifications and written orders to be made by enrolled physicians and health professions) to all other categories of items or services under title XVIII of the Social Security Act (42 U.S.C. 1395 et seq.), including covered part D drugs as defined in section 1860D-2(e) of such Act (42 U.S.C. 1395w-102), that are ordered, prescribed, or referred by a physician enrolled under section 1866(j) of such Act (42 U.S.C. 1395cc(j)) or an eligible professional under section 1848(k)(3)(B) of such Act (42 U.S.C. 1395w-4(k)(3)(B)). (10083)

(d) Effective Date- The amendments made by this section shall apply to written orders and certifications made on or after July 1, 2010. (10084)

SEC. 6406. REQUIREMENT FOR PHYSICIANS TO PROVIDE DOCUMENTATION ON REFERRALS TO PROGRAMS AT HIGH RISK OF WASTE AND ABUSE. (10085)(1-click HTML)

(a) Physicians and Other Suppliers- Section 1842(h) of the Social Security Act (42 U.S.C. 1395u(h)) is amended by adding at the end the following new paragraph: (10086)

"(9) The Secretary may revoke enrollment, for a period of not more than one year for each act, for a physician or supplier under section 1866(j) if such physician or supplier fails to maintain and, upon request of the Secretary, provide access to documentation relating to written orders or requests for payment for durable medical equipment, certifications for home health services, or referrals for other items or services written or ordered by such physician or supplier under this title, as specified by the Secretary.". (10087)

(b) Providers of Services- Section 1866(a)(1) of such Act (42 U.S.C. 1395cc) is further amended-- (10088)

(1) in subparagraph (U), by striking at the end "and"; (10089)

(2) in subparagraph (V), by striking the period at the end and adding "; and"; and (10090)

(3) by adding at the end the following new subparagraph: (10091)

"(W) maintain and, upon request of the Secretary, provide access to documentation relating to written orders or requests for payment for durable medical equipment, certifications for home health services, or referrals for other items or services written or ordered by the provider under this title, as specified by the Secretary.". (10092)

(c) OIG Permissive Exclusion Authority- Section 1128(b)(11) of the Social Security Act (42 U.S.C. 1320a-7(b)(11)) is amended by inserting ", ordering, referring for furnishing, or certifying the need for" after "furnishing". (10093)

(d) Effective Date- The amendments made by this section shall apply to orders, certifications, and referrals made on or after January 1, 2010. (10094)

SEC. 6407. FACE TO FACE ENCOUNTER WITH PATIENT REQUIRED BEFORE PHYSICIANS MAY CERTIFY ELIGIBILITY FOR HOME HEALTH SERVICES OR DURABLE MEDICAL EQUIPMENT UNDER MEDICARE. (10095)(1-click HTML)

(a) Condition of Payment for Home Health Services- (10096)

(1) PART A- Section 1814(a)(2)(C) of such Act is amended-- (10097)

(A) by striking "and such services" and inserting "such services"; and (10098)

(B) by inserting after "care of a physician" the following: ", and, in the case of a certification made by a physician after January 1, 2010, prior to making such certification the physician must document that the physician himself or herself has had a face-to-face encounter (including through use of telehealth, subject to the requirements in section 1834(m), and other than with respect to encounters that are incident to services involved) with the individual within a reasonable timeframe as determined by the Secretary". (10099)

(2) PART B- Section 1835(a)(2)(A) of the Social Security Act is amended-- (10100)

(A) by striking "and" before "(iii)"; and (10101)

(B) by inserting after "care of a physician" the following: ", and (iv) in the case of a certification after January 1, 2010, prior to making such certification the physician must document that the physician has had a face-to-face encounter (including through use of telehealth and other than with respect to encounters that are incident to services involved) with the individual during the 6-month period preceding such certification, or other reasonable timeframe as determined by the Secretary". (10102)

(b) Condition of Payment for Durable Medical Equipment- Section 1834(a)(11)(B) of the Social Security Act (42 U.S.C. 1395m(a)(11)(B)) is amended-- (10103)

(1) by striking "ORDER- The Secretary" and inserting "ORDER- (10104)

"(i) IN GENERAL- The Secretary"; and (10105)

(2) by adding at the end the following new clause: (10106)

"(ii) REQUIREMENT FOR FACE TO FACE ENCOUNTER- The Secretary shall require that such an order be written pursuant to the physician documenting that a physician, a physician assistant, a nurse practitioner, or a clinical nurse specialist (as those terms are defined in section 1861(aa)(5)) has had a face-to-face encounter (including through use of telehealth under subsection (m) and other than with respect to encounters that are incident to services involved) with the individual involved during the 6-month period preceding such written order, or other reasonable timeframe as determined by the Secretary.". (10107)

(c) Application to Other Areas Under Medicare- The Secretary may apply the face-to-face encounter requirement described in the amendments made by subsections (a) and (b) to other items and services for which payment is provided under title XVIII of the Social Security Act based upon a finding that such an decision would reduce the risk of waste, fraud, or abuse. (10108)

(d) Application to Medicaid- The requirements pursuant to the amendments made by subsections (a) and (b) shall apply in the case of physicians making certifications for home health services under title XIX of the Social Security Act in the same manner and to the same extent as such requirements apply in the case of physicians making such certifications under title XVIII of such Act. (10109)

SEC. 6408. ENHANCED PENALTIES. (10110)(1-click HTML)

(a) Civil Monetary Penalties for False Statements or Delaying Inspections- Section 1128A(a) of the Social Security Act (42 U.S.C. 1320a-7a(a)), as amended by section 5002(d)(2)(A), is amended-- (10111)

(1) in paragraph (6), by striking "or" at the end; and (10112)

(2) by inserting after paragraph (7) the following new paragraphs: (10113)

"(8) knowingly makes, uses, or causes to be made or used, a false record or statement material to a false or fraudulent claim for payment for items and services furnished under a Federal health care program; or (10114)

"(9) fails to grant timely access, upon reasonable request (as defined by the Secretary in regulations), to the Inspector General of the Department of Health and Human Services, for the purpose of audits, investigations, evaluations, or other statutory functions of the Inspector General of the Department of Health and Human Services;"; and (10115)

(3) in the first sentence-- (10116)

(A) by striking "or in cases under paragraph (7)" and inserting "in cases under paragraph (7)"; and (10117)

(B) by striking "act)" and inserting "act, in cases under paragraph (8), $50,000 for each false record or statement, or in cases under paragraph (9), $15,000 for each day of the failure described in such paragraph)". (10118)

(b) Medicare Advantage and Part D Plans- (10119)

(1) ENSURING TIMELY INSPECTIONS RELATING TO CONTRACTS WITH MA ORGANIZATIONS- Section 1857(d)(2) of such Act (42 U.S.C. 1395w-27(d)(2)) is amended-- (10120)

(A) in subparagraph (A), by inserting "timely" before "inspect"; and (10121)

(B) in subparagraph (B), by inserting "timely" before "audit and inspect". (10122)

(2) MARKETING VIOLATIONS- Section 1857(g)(1) of the Social Security Act (42 U.S.C. 1395w-27(g)(1)) is amended-- (10123)

(A) in subparagraph (F), by striking "or" at the end; (10124)

(B) by inserting after subparagraph (G) the following new subparagraphs: (10125)

"(H) except as provided under subparagraph (C) or (D) of section 1860D-1(b)(1), enrolls an individual in any plan under this part without the prior consent of the individual or the designee of the individual; (10126)

"(I) transfers an individual enrolled under this part from one plan to another without the prior consent of the individual or the designee of the individual or solely for the purpose of earning a commission; (10127)

"(J) fails to comply with marketing restrictions described in subsections (h) and (j) of section 1851 or applicable implementing regulations or guidance; or (10128)

"(K) employs or contracts with any individual or entity who engages in the conduct described in subparagraphs (A) through (J) of this paragraph;"; and (10129)

(C) by adding at the end the following new sentence: "The Secretary may provide, in addition to any other remedies authorized by law, for any of the remedies described in paragraph (2), if the Secretary determines that any employee or agent of such organization, or any provider or supplier who contracts with such organization, has engaged in any conduct described in subparagraphs (A) through (K) of this paragraph.". (10130)

(3) PROVISION OF FALSE INFORMATION- Section 1857(g)(2)(A) of the Social Security Act (42 U.S.C. 1395w-27(g)(2)(A)) is amended by inserting "except with respect to a determination under subparagraph (E), an assessment of not more than the amount claimed by such plan or plan sponsor based upon the misrepresentation or falsified information involved," after "for each such determination,". (10131)

(c) Obstruction of Program Audits- Section 1128(b)(2) of the Social Security Act (42 U.S.C. 1320a-7(b)(2)) is amended-- (10132)

(1) in the heading, by inserting "OR AUDIT" after "INVESTIGATION"; and (10133)

(2) by striking "investigation into" and all that follows through the period and inserting "investigation or audit related to--" (10134)

"(i) any offense described in paragraph (1) or in subsection (a); or (10135)

"(ii) the use of funds received, directly or indirectly, from any Federal health care program (as defined in section 1128B(f)).". (10136)

(d) Effective Date- (10137)

(1) IN GENERAL- Except as provided in paragraph (2), the amendments made by this section shall apply to acts committed on or after January 1, 2010. (10138)

(2) EXCEPTION- The amendments made by subsection (b)(1) take effect on the date of enactment of this Act. (10139)

SEC. 6409. MEDICARE SELF-REFERRAL DISCLOSURE PROTOCOL. (10140)(1-click HTML)

(a) Development of Self-Referral Disclosure Protocol- (10141)

(1) IN GENERAL- The Secretary of Health and Human Services, in cooperation with the Inspector General of the Department of Health and Human Services, shall establish, not later than 6 months after the date of the enactment of this Act, a protocol to enable health care providers of services and suppliers to disclose an actual or potential violation of section 1877 of the Social Security Act (42 U.S.C. 1395nn) pursuant to a self-referral disclosure protocol (in this section referred to as an "SRDP"). The SRDP shall include direction to health care providers of services and suppliers on-- (10142)

(A) a specific person, official, or office to whom such disclosures shall be made; and (10143)

(B) instruction on the implication of the SRDP on corporate integrity agreements and corporate compliance agreements. (10144)

(2) PUBLICATION ON INTERNET WEBSITE OF SRDP INFORMATION- The Secretary of Health and Human Services shall post information on the public Internet website of the Centers for Medicare & Medicaid Services to inform relevant stakeholders of how to disclose actual or potential violations pursuant to an SRDP. (10145)

(3) RELATION TO ADVISORY OPINIONS- The SRDP shall be separate from the advisory opinion process set forth in regulations implementing section 1877(g) of the Social Security Act. (10146)

(b) Reduction in Amounts Owed- The Secretary of Health and Human Services is authorized to reduce the amount due and owing for all violations under section 1877 of the Social Security Act to an amount less than that specified in subsection (g) of such section. In establishing such amount for a violation, the Secretary may consider the following factors: (10147)

(1) The nature and extent of the improper or illegal practice. (10148)

(2) The timeliness of such self-disclosure. (10149)

(3) The cooperation in providing additional information related to the disclosure. (10150)

(4) Such other factors as the Secretary considers appropriate. (10151)

(c) Report- Not later than 18 months after the date on which the SRDP protocol is established under subsection (a)(1), the Secretary shall submit to Congress a report on the implementation of this section. Such report shall include-- (10152)

(1) the number of health care providers of services and suppliers making disclosures pursuant to the SRDP; (10153)

(2) the amounts collected pursuant to the SRDP; (10154)

(3) the types of violations reported under the SRDP; and (10155)

(4) such other information as may be necessary to evaluate the impact of this section. (10156)

SEC. 6410. ADJUSTMENTS TO THE MEDICARE DURABLE MEDICAL EQUIPMENT, PROSTHETICS, ORTHOTICS, AND SUPPLIES COMPETITIVE ACQUISITION PROGRAM. (10157)(1-click HTML)

(a) Expansion of Round 2 of the DME Competitive Bidding Program- Section 1847(a)(1) of the Social Security Act (42 U.S.C. 1395w-3(a)(1)) is amended-- (10158)

(1) in subparagraph (B)(i)(II), by striking "70" and inserting "91"; and (10159)

(2) in subparagraph (D)(ii)-- (10160)

(A) in subclause (I), by striking "and" at the end; (10161)

(B) by redesignating subclause (II) as subclause (III); and (10162)

(C) by inserting after subclause (I) the following new subclause: (10163)

"(II) the Secretary shall include the next 21 largest metropolitan statistical areas by total population (after those selected under subclause (I)) for such round; and". (10164)

(b) Requirement to Either Competitively Bid Areas or Use Competitive Bid Prices by 2016- Section 1834(a)(1)(F) of the Social Security Act (42 U.S.C. 1395m(a)(1)(F)) is amended-- (10165)

(1) in clause (i), by striking "and" at the end; (10166)

(2) in clause (ii)-- (10167)

(A) by inserting "(and, in the case of covered items furnished on or after January 1, 2016, subject to clause (iii), shall)" after "may"; and (10168)

(B) by striking the period at the end and inserting "; and"; and (10169)

(3) by adding at the end the following new clause: (10170)

"(iii) in the case of covered items furnished on or after January 1, 2016, the Secretary shall continue to make such adjustments described in clause (ii) as, under such competitive acquisition programs, additional covered items are phased in or information is updated as contracts under section 1847 are recompeted in accordance with section 1847(b)(3)(B).". (10171)

SEC. 6411. EXPANSION OF THE RECOVERY AUDIT CONTRACTOR (RAC) PROGRAM. (10172)(1-click HTML)

(a) Expansion to Medicaid- (10173)

(1) STATE PLAN AMENDMENT- Section 1902(a)(42) of the Social Security Act (42 U.S.C. 1396a(a)(42)) is amended-- (10174)

(A) by striking "that the records" and inserting "that-- (10175)

"(A) the records"; (10176)

(B) by inserting "and" after the semicolon; and (10177)

(C) by adding at the end the following: (10178)

"(B) not later than December 31, 2010, the State shall-- (10179)

"(i) establish a program under which the State contracts (consistent with State law and in the same manner as the Secretary enters into contracts with recovery audit contractors under section 1893(h), subject to such exceptions or requirements as the Secretary may require for purposes of this title or a particular State) with 1 or more recovery audit contractors for the purpose of identifying underpayments and overpayments and recouping overpayments under the State plan and under any waiver of the State plan with respect to all services for which payment is made to any entity under such plan or waiver; and (10180)

"(ii) provide assurances satisfactory to the Secretary that-- (10181)

"(I) under such contracts, payment shall be made to such a contractor only from amounts recovered; (10182)

"(II) from such amounts recovered, payment-- (10183)

"(aa) shall be made on a contingent basis for collecting overpayments; and (10184)

"(bb) may be made in such amounts as the State may specify for identifying underpayments; (10185)

"(III) the State has an adequate process for entities to appeal any adverse determination made by such contractors; and (10186)

"(IV) such program is carried out in accordance with such requirements as the Secretary shall specify, including-- (10187)

"(aa) for purposes of section 1903(a)(7), that amounts expended by the State to carry out the program shall be considered amounts expended as necessary for the proper and efficient administration of the State plan or a waiver of the plan; (10188)

"(bb) that section 1903(d) shall apply to amounts recovered under the program; and (10189)

"(cc) that the State and any such contractors under contract with the State shall coordinate such recovery audit efforts with other contractors or entities performing audits of entities receiving payments under the State plan or waiver in the State, including efforts with Federal and State law enforcement with respect to the Department of Justice, including the Federal Bureau of Investigations, the Inspector General of the Department of Health and Human Services, and the State medicaid fraud control unit; and". (10190)

(2) COORDINATION; REGULATIONS- (10191)

(A) IN GENERAL- The Secretary of Health and Human Services, acting through the Administrator of the Centers for Medicare & Medicaid Services, shall coordinate the expansion of the Recovery Audit Contractor program to Medicaid with States, particularly with respect to each State that enters into a contract with a recovery audit contractor for purposes of the State"s Medicaid program prior to December 31, 2010. (10192)

(B) REGULATIONS- The Secretary of Health and Human Services shall promulgate regulations to carry out this subsection and the amendments made by this subsection, including with respect to conditions of Federal financial participation, as specified by the Secretary. (10193)

(b) Expansion to Medicare Parts C and D- Section 1893(h) of the Social Security Act (42 U.S.C. 1395ddd(h)) is amended-- (10194)

(1) in paragraph (1), in the matter preceding subparagraph (A), by striking "part A or B" and inserting "this title"; (10195)

(2) in paragraph (2), by striking "parts A and B" and inserting "this title"; (10196)

(3) in paragraph (3), by inserting "(not later than December 31, 2010, in the case of contracts relating to payments made under part C or D)" after "2010"; (10197)

(4) in paragraph (4), in the matter preceding subparagraph (A), by striking "part A or B" and inserting "this title"; and (10198)

(5) by adding at the end the following: (10199)

"(9) SPECIAL RULES RELATING TO PARTS C AND D- The Secretary shall enter into contracts under paragraph (1) to require recovery audit contractors to-- (10200)

"(A) ensure that each MA plan under part C has an anti-fraud plan in effect and to review the effectiveness of each such anti-fraud plan; (10201)

"(B) ensure that each prescription drug plan under part D has an anti-fraud plan in effect and to review the effectiveness of each such anti-fraud plan; (10202)

"(C) examine claims for reinsurance payments under section 1860D-15(b) to determine whether prescription drug plans submitting such claims incurred costs in excess of the allowable reinsurance costs permitted under paragraph (2) of that section; and (10203)

"(D) review estimates submitted by prescription drug plans by private plans with respect to the enrollment of high cost beneficiaries (as defined by the Secretary) and to compare such estimates with the numbers of such beneficiaries actually enrolled by such plans.". (10204)

(c) Annual Report- The Secretary of Health and Human Services, acting through the Administrator of the Centers for Medicare & Medicaid Services, shall submit an annual report to Congress concerning the effectiveness of the Recovery Audit Contractor program under Medicaid and Medicare and shall include such reports recommendations for expanding or improving the program. (10205)

  

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