MISCELLANEOUS AND TECHNICAL PROVISIONS RELATING TO PARTS A AND B.

SEC. 4027. MISCELLANEOUS AND TECHNICAL PROVISIONS RELATING TO PARTS A AND B. (a) Hospital and Physician Obligations With Respect to Emergency Medical Conditions.— (1) Peer review.— (A) Section 1867(d) (42 U.S.C. 1395dd(d)), as amended by section 4008(b)(3), is amended by adding at the end the following new paragraph: (2) Consultation with peer review organizations.—In considering allegations of violations of the requirements of this section in imposing sanctions under paragraph (1), the Secretary shall request the appropriate utilization and quality control peer review organization (with a contract under part B of title )(I) to assess whether the individual involved had an emergency medical condition which had not been stabilized, and provide a report on its findings. Except in the case in which a delay would jeopardize the health or safety of individuals, the Secretary shall request such a review before effecting a sanction under paragraph (1) and shall provide a period of at least 60 days for such review.2323So in original. Probably should be ““review”.”. (B) Section 1154(a) (42 U.S.C. 1320c–4(a)) is amended by adding at the end the following new paragraph: “(16) The organization shall provide for a review and report to the Secretary when requested by the Secretary under section 1867(d)(3). The organization shall provide reasonable notice of the review to the physician and hospital involved. Within the time period permitted by the Secretary, the organization shall provide a reasonable opportunity for discussion with the physician and hospital involved, and an opportunity for the physician and hospital to submit additional information, before issuing its report to the Secretary under such section.”. (C) The amendment made by subparagraph (A) shall take effect on the first day of the first month beginning more than 60 days after the date of the enactment of this Act. The amendment made by subparagraph (B) shall apply to contracts under part B of title )(I of the Social Security Act as of the first day of the first month beginning more than 60 days after the date of the enactment of this Act. (2) Civil monetary penalties.—Section 1867(d)(2)(B) (42 U.S.C 1395dd(d)(2)(B)) is amended by striking “knowingly” and inserting “negligently”. (3) Exclusion.—Section 1867(d)(2)(B) (42 U.S.C. 1395dd(d)(2)(B)) is amended by striking “knowing and willful or negligent” and inserting “is gross and flagrant or is repeated”. 104 STAT. 1388–118 (4) Effective date.—The amendments made by this subsection shall apply to actions occurring on or after the first day of the sixth month beginning after the date of the enactment of this Act. (b) Extensions of Expiring Provisions.— (1) Prohibition on cost savings policies before beginning of fiscal year.— Notwithstanding any other provision of law, the Secretary of Health and Human Services may not issue any proposed or final regulation, instruction, or other policy which is estimated by the Secretary to result in a net reduction in expenditures under title XVIII of the Social Security Act in a fiscal year (beginning with fiscal year 1991 and ending with fiscal year 1993, or, if later, the last fiscal year for which there is a maximum deficit amount specified under section 3(7) of the Congressional Budget and Impoundment Control Act of 1974) of more than $50,000,000, except as follows: (A) The Secretary may issue such a proposed regulation, instruction, or other policy with respect to the fiscal year before the May 15 preceding the beginning of the fiscal year. (B) The Secretary may issue such a final regulation, instruction, or other policy with respect to the fiscal year on or after October 15 of the fiscal year. (C) The Secretary may, at any time, issue such a proposed or final regulation, instruction, or other policy with respect to the fiscal year if required to implement specific provisions under statute. (2) Prohibition of payment cycle changes.—Notwithstanding any other provision of law, the Secretary of Health and Human Services is not authorized to issue, after the date of the enactment of this Act, any final regulation, instruction, or other policy change which is primarily intended to have the effect of slowing down or speeding up claims processing, or delaying payment of claims, under title XVIII of the Social Security Act. (3) Waiver of liability for home health agencies.—Section 9305(g)(3) of the Omnibus Budget Reconciliation Act of 1986, as amended by section 426(d) of the Medicare Catastrophic Coverage Act of 1988, is amended by striking “November 1, 1990” and inserting “December 31, 1995”. (4) Extension and expansion of waivers for social health maintenance organizations.— (A) Extension of current waivers.—Section 4018(b) of the Omnibus Budget Reconciliation Act of 1987 is amended— (i) in paragraph (1), by striking “September 30, 1992” and inserting “December 31, 1995”; and (ii) in paragraph (4)— (I) by striking “final” and inserting “second interim”, and (II) by striking the period at the end and inserting the following: “, and shall submit a final report on the demonstration projects conducted under section 2355 of the Deficit Reduction Act of 1984 not later than March 31, 1996.”. (B) Expansion of demonstrations.— Section 2355 of the Deficit Reduction Act of 1984 is amended— 104 STAT. 1388–119 (i) in subsection (a), by adding at the end the following: “Not later than 12 months after the date of the enactment of the Omnibus Budget Reconciliation Act of 1990, the Secretary shall approve such applications or protocols for not more than 4 additional projects described in subsection (b).”; (ii) by amending paragraph (1) of subsection (b) to read as follows: “(1) to demonstrate— “(A) the concept of a social health maintenance organization with the organizations as described in Project No. 18-P-9 7604/1–04 of the University Health Policy Consortium of Brandeis University, or “(B) in the case of a project conducted as a result of the amendments made by section 12907(c)(4)(A) of the Omnibus Budget Reconciliation Act of 1990, the effectiveness and feasibility2424So in original. Probably should be “feasibility”. of innovative approaches to refining targeting and financing methodologies and benefit design, including the effectiveness of feasibility of— “(i) the benefits of expanded post-acute and community care case management through links between chronic care case management services and acute care providers; “(ii) refining targeting or reimbursement methodologies; “(iii) the establishment and operation of a rural services delivery system; or “(iv) the effectiveness of second-generation sites in reducing the costs of the commencement and management of health care service delivery;”; (iii) in subsection (b)— (I) by inserting “and” at the end of paragraph (3), (II) by striking the semicolon at the end of paragraph (4) and inserting a period, and (III) by striking paragraphs (5), (6), and (7).2525So in original. Probably should be “(7);”. (iv) in subsection (c)— (I) by striking “and” at the end of paragraph (1), (II) by striking the period at the end of paragraph (2) and inserting “; and”, and (III) by adding at the end the following new paragraph: “(3) in the case of a project conducted as a result of the amendments made by section 12907(c)(4)(A) of the Omnibus Budget Reconciliation Act of 1990, any requirements of titles XVIII or XIX of the Social Security Act that, if imposed, would prohibit such project from being conducted.”; and (v) by adding at the end the following new subsection: “(e) There are authorized to be appropriated $3,500,000 for the costs of technical assistance and evaluation related to projects conducted as a result of the amendments made by section 12907(c)(4)(A) of the Omnibus Budget Reconciliation Act of 1990.”. (c) Development of Prospective Payment System for Home Health Services.— (1) Development of proposal.— The Secretary of Health and Human Services shall develop a proposal to modify the current system under which payment is made for home health services under title XVIII of the Social Security Act or a proposal to 104 STAT. 1388–120replace such system with a system under which such payments would be made on the basis of prospectively determined rates. In developing any proposal under this paragraph to replace the current system with a prospective payment system, the Secretary shall— (A) take into consideration the need to provide for appropriate limits on increases in expenditures under the medicare program; (B) provide for adjustments to prospectively determined rates to account for changes in a provider’s case mix, severity of illness of patients, volume of cases, and the development of new technologies and standards of medical practice; (C) take into consideration the need to increase the payment otherwise made under such system in the case of services provided to patients whose length of treatment or costs of treatment greatly exceed the length or cost of treatment provided for under the applicable prospectively determined payment rate; (D) take into consideration the need to adjust payments under the system to take into account factors such as differences in wages and wage-related costs among agencies located in various geographic areas and other factors the Secretary considers appropriate; and (E) analyze the feasibility and appropriateness of establishing the episode of illness as the basic unit for making payments under the system. (2) Reports.— (A) By not later than April 1, 1993, the Secretary of Health and Human Services shall submit the research findings upon which the proposal described in paragraph (1) shall be based to the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives. (B) By not later than September 1, 1993, the Secretary shall submit the proposal developed under paragraph (1) to the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives. (C) By not later than March 1, 1994, the Prospective Payment Assessment Commission shall submit an analysis of and comments on the proposal developed under paragraph (1) to the Committee on Finance of the Senate and the Committee on Ways and Means of the House of Representatives. (d) Home Health Wage Index.— (1) In general.—Section 1861(v)(D(L)(iii) (42 U.S.C. 1395x(v)(l)(L)(iii)) is amended to read as follows: “(iii) Not later than July 1, 1991, and annually thereafter, the Secretary shall establish limits under this subparagraph for cost reporting periods beginning on or after such date by utilizing the area wage index applicable under section 1886(d)(3)(E) as of such date to hospitals located in the geographic area in which the home health agency is located (determined without regard to whether such hospitals have been reclassified to a new geographic area pursuant to section 1886(d)(8)(B), a decision of the Medicare Geo-graphic Classification Review Board under section 1886(d)(10), or a decision of the Secretary).”. (2) Application on budget-neutral basis.—In updating the wage index for establishing limits under section 1861(v)(l)(L)(iii) 104 STAT. 1388–121 of the Social Security Act, the Secretary shall ensure that aggregate payments to home health agencies under title XVIII of such Act will be no greater or lesser than such payments would have been without regard to such update. (3) Transition provision.— Notwithstanding section 1861(v)(l)(L)(iii) of the Social Security Act, the Secretary of Health and Human Services shall, in determining the limits of reasonable costs under title XVIII of such Act with respect to services furnished by a home health agency, utilize a wage index equal to— (A) for cost reporting periods beginning on or after July 1, 1991, and on or before June 30, 1992, a combined area wage index consisting of— (i) 67 percent of the area wage index applicable under section 1861(v)(l)(L)(iii) of such Act to such home health agency, determined using the survey of the 1982 wages and wage-related costs of hospitals in the United States conducted under such section, and (ii) 33 percent of the area wage index applicable under section 1886(d)(3)(E) of such Act to hospitals located in the geographic area in which the home health agency is located, determined using the survey of the 1988 wages and wage-related costs of hospitals in the United States conducted under such section; and (B) for cost reporting periods beginning on or after July 1, 1992, and on or before June 30, 1993, a combined area wage index consisting of— (i) 33 percent of the area wage index applicable under section 1861(v)(l)(L)(iii) of such Act to such home health agency, determined using the survey of the 1982 wages and wage-related costs of hospitals in the United States conducted under such section, and (ii) 67 percent of the area wage index applicable under section 1886(d)(3)(E) of such Act to hospitals located in the geographic area in which the home health agency is located, determined using the survey of the 1988 wages and wage-related costs of hospitals in the United States conducted under such section. (3) Effective date.—The amendment made by paragraph (1) shall apply with respect to home health agency cost reporting periods beginning on or after July 1, 1991. (e) Clarification of Definitions and Reporting Requirements Relating to Physician Ownership and Referral— (1) Clarifying definitions.— Section 1877(h) of the Social Security Act (42 U.S.C. 1395nn(h)) is amended— (A) in paragraph (6)(A), by striking “in the case of” and all that follows through “the service,” and inserting “in the case of an item or service for which payment may be made under part B, the request by a physician for the item or service,”; (B) in paragraph (6)(B), by striking “in the case of another clinical laboratory service,”, and (C) by redesignating paragraph (6) as paragraph (7) and by inserting after paragraph (5) the following new paragraph: 104 STAT. 1388–122 “(6) Investor.—The term ‘investor’ means, with respect to an entity, a person with a financial relationship specified in subsection (a)(2) with the entity.”. (2) Exemption for financial relationships with hospital unrelated to the provision of clinical laboratory services.—Section 1877(b) is amended by redesignating paragraph (4) as paragraph (5) and by inserting after paragraph (3) the following new paragraph: “(4) Hospital financial relationship unrelated to the provision of clinical laboratory services.—In the case of a financial relationship with a hospital if the financial relation-ship does not relate to the provision of clinical laboratory services.”. (3) Revision of reporting requirements.— Section 1877(f) (42 U.S.C. 1395nn(f)) is amended— (A) by amending paragraph (2) to read as follows: “(2) the names and unique physician identification numbers of all physicians with an ownership or investment interest (as described in subsection (a)(2)(A)) in the entity, or whose immediate relatives have such an ownership or investment.”; (B) in the third sentence, by striking “1 year after the date of the enactment of this section” and inserting “October 1, 1991”; and (C) by adding at the end the following new sentences: “The requirement of this subsection shall not apply to covered items and services provided outside the United States or to entities which the Secretary determines provides services for which payment may be made under this title very infrequently. The Secretary may waive the requirements of this subsection (and the requirements of chapter 35 of title 44, United States Code, with respect to information provided under this subsection) with respect to reporting by entities in a State (except for entities providing clinical laboratory services) so long as such reporting occurs in at least 10 States, and the Secretary may waive such requirements with respect to the providers in a State required to report so long as such requirements are not waived with respect to parenteral and enteral suppliers, end stage renal disease facilities, suppliers of ambulance services, hospitals, entities providing physical therapy services, and entities providing diagnostic imaging services of any type.”. (4) Date of issuance of reports and regulations.— (A) Section 6204 of the Omnibus Budget Reconciliation Act of 1989 is amended by striking subsection (f) and inserting the following: “(f) Statistical Summary of Comparative Utilization.—Not later than June 30, 1992, the Secretary of Health and Human Services shall submit to Congress a statistical profile comparing utilization of items and services by medicare beneficiaries served by entities in which the referring physician has a direct or indirect financial interest and by medicare beneficiaries served by other entities, for the States and entities specified in section 1877(f) of the Social Security Act (other than entities providing clinical laboratory services).”. (B) Section 6204(d) of the Omnibus Budget Reconciliation Act of 1989 is amended by striking “October 1, 1990” and inserting “October 1, 1991”. 104 STAT. 1388–123 (5) Effective date.—The amendments made by this subsection shall be effective as if included in the enactment of section 6204 of the Omnibus Budget Reconciliation Act of 1989. (f) Case Management Demonstration Project.— (1) In general.—Notwithstanding any other provision of law, the Secretary of Health and Human Services shall resume the 3 case management demonstration projects described in paragraph (2) and approved under section 425 of the Medicare Catastrophic Coverage Act of 1988 (in this subsection referred to as “MCCA”). (2) Project descriptions.— The demonstration projects referred to in paragraph (1) are— (A) the project proposed to be conducted by Providence Hospital for case management of the elderly at risk for acute hospitalization as described in Project No. 18-P-99379/5–01; (B) the project proposed to be conducted by the Iowa Foundation for Medical Care to study patients with chronic congestive conditions to reduce repeated hospitalizations of such patients as described in Project No. P-99399/4–01; and (C) the project proposed to be conducted by Key Care Health Resources, Inc., to examine the effects of case management on 2,500 high cost medicare beneficiaries as described in Project No. 18-P-99396/ 5. (3) Terms and conditions.—Except as provided in paragraph (4), the demonstration projects resumed pursuant to paragraph (1) shall be subject to the same terms and conditions established under section 425 of MCCA. In determining the 2-year duration period of a project resumed pursuant to paragraph (1), the Secretary may not take into account any period of time for which the project was in effect under section 425 of MCCA. (4) Authorization of appropriations.—Notwithstanding section 425(g) of MCCA, there are authorized to be appropriated for administrative costs in carrying out the demonstration projects resumed pursuant to paragraph (1) $2,000,000 in each of fiscal years 1991 and 1992. (g) Prohibition of User Fees for Survey and Certification.—Section 1864 (42 U.S.C. 1395aa) is amended by adding at the end the following new subsection: ”(e) Notwithstanding any other provision of law, the Secretary may not impose, or require a State to impose, any fee on any facility or entity subject to a determination under subsection (a), or any renal dialysis facility subject to the requirements of section 1881(b)(1), for any such determination or any survey relating to determining the compliance of such facility or entity with any requirement of this title.”. (h) Delegation of Authority to Inspector General.—Section 1128A(j) (42 U.S.C. 1320a–7a(j)) is amended— (i) by striking “(j)” and inserting “(j)(l)”; and (ii) by adding at the end the following new paragraph: (2) The Secretary may delegate authority granted under this section and under section 1128 to the Inspector General of the Department of Health and Human Services.”. (i) Modification of Home Health Agency Deficiency Standards.— (1) In general.— Effective as if included in the enactment of the Omnibus Budget Reconciliation Act of 1987, section 104 STAT. 1388–124 1891(a)(3)(D)(iii) of the Social Security Act (42 U.S.C. 1395bbb(a)(3)(D)(iii)) is amended by striking “which has been determined” and all that follows and inserting the following: “which, within the previous 2 years— “(I) has been determined to he out of compliance with subparagraph (A), (B), or (C); “(II) has been subject to an extended (or partial extended) survey under subsection (c)(2)(D); “(III) has been assessed a civil money penalty described in subsection (f)(2)(A)(i) of not less than $5,000; or “(IV) has been subject to the remedies described in subsection (e)(1) or in clauses (ii) or (iii) of subsection (1)(2)(A).”. (2) Effective date.—The amendments made by paragraph (1) shall take effect as if included in the enactment of the Omnibus Budget Reconciliation Act of 1987, except that the Secretary may not permit approval of a training and competency evaluation program or a competency evaluation program offered by or in a home health agency which, pursuant to any Federal or State law within the 2-year period beginning on October 1, 1988— (i) had its participation terminated under title XVIII of the Social Security Act; (ii) was assessed a civil money penalty not less than $5,000 for deficiencies in applicable quality standards for home health agencies; (iii) was subject to suspension by the Secretary of all or part of the payments to which it would otherwise be entitled under such title.2626So in original. Probably should be “;”. (iv) operated under a temporary management appointed to oversee the operation of the agency and to ensure the health and safety of the agency’s patients; or (v) pursuant to State action, was closed or had its residents transferred. (j) Use of Interim Final Regulations.—The Secretary of Health and Human Services shall issue such regulations (on an interim or other basis) as may be necessary to implement this title and the amendments made by this title. (k) Miscellaneous Technical Corrections.— (1) The third sentence of subsections (a) and (b)(D of section 1882 of the Social Security Act (42 U.S.C. 1395ss), as amended by section 203(a)(l)(A) of the Medicare Catastrophic Coverage Repeal Act, is amended by striking “(k)(4),”. (2) Section 1877(g)(5) of the Social Security Act, as added by section 6204(a) of OBRA-1989, is amended by adding at the end the following new sentence: “The provisions of section 1128A (other than the first sentence of subsection (a) and other than subsection (b)) shall apply to a civil money penalty under the previous sentence in the same manner as such provisions apply to a penalty or proceeding under section 1128A(a).”. (3) Subsection (i) of section 1867 of the Social Security Act, as added by section 6211(f) of the Omnibus Budget Reconciliation Act of 1989, is amended to read as follows: “(i) Whistleblower Protections.—A participating hospital may not penalize or take adverse action against a qualified medical person described in subsection (c)(D(A)(iii) or a physician because the 104 STAT. 1388–125person or physician refuses to authorize the transfer of an individual with an emergency medical condition that has not been stabilized or against any hospital employee because the employee reports a violation of a requirement of this section.”. (4) Section 6213(d) of the Omnibus Budget Reconciliation Act of 1989 is amended by striking “take effect” and inserting “apply to services furnished on or after”. (5) Section 6217(a) of the Omnibus Budget Reconciliation Act of 1989 is amended in the matter preceding paragraph (1) by inserting after “payments” the following: “out of the Federal Hospital Insurance Trust Fund and the Federal Supplementary Medical Insurance Trust Fund (in such proportions as the Secretary determines to be appropriate in a year)”. (6) Section 1139(d) of the Social Security Act, as amended by section 6221 of Omnibus Budget Reconciliation Act of 1989, is amended by striking “interim report” and all that follows through ”setting forth” and inserting the following: “interim report no later than March 31, 1990, and a final report no later than March 31, 1991, setting forth”.