AFIRM Act

II 116TH CONGRESS 1ST SESSION S. 3078 To amend title XVIII of the Social Security Act to improve the efficiency of the Medicare appeals process, and for other purposes. IN THE SENATE OF THE UNITED STATES DECEMBER 17, 2019 Mr. GRASSLEY (for himself and Mr. WYDEN) introduced the following bill; which was read twice and referred to the Committee on Finance A BILL To amend title XVIII of the Social Security Act to improve the efficiency of the Medicare appeals process, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Audit & Appeals Fairness, Integrity, and Reforms in 5 Medicare Act of 2019’’ or the ‘‘AFIRM Act’’. 6 (b) TABLE OF CONTENTS.—The table of contents for 7 this Act is as follows: 8 Sec. 1. Short title; table of contents. Sec. 2. Authority to establish a process to review low value claims; revision of amount in controversy thresholds. VerDate Sep 11 2014 02:56 Dec 24, 2019 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:\BILLS\S3078.IS S3078 kjohnson on DSK79L0C42 with BILLS 2 •S 3078 IS Sec. 3. Remanding appeals to the redetermination level with the introduction of new evidence. Sec. 4. Expedited access to appeals. Sec. 5. Authority to use sampling and extrapolation methodologies and to con- solidate appeals for administrative efficiency. Sec. 6. Identification and referral of fraud. Sec. 7. Study to assess hearing participation. Sec. 8. Improvements to the Office of Medicare Hearings and Appeals. Sec. 9. Review program improvements. Sec. 10. Creation of Medicare Provider and Supplier Ombudsman for Reviews and Appeals. Sec. 11. Limiting the audit and recovery period for patient status reviews. Sec. 12. Incentives and disincentives for Medicare contractors, providers, and suppliers. SEC. 2. AUTHORITY TO ESTABLISH A PROCESS TO REVIEW 1 LOW VALUE CLAIMS; REVISION OF AMOUNT 2 IN CONTROVERSY THRESHOLDS. 3 (a) AUTHORITY TO ESTABLISH A PROCESS TO RE- 4 VIEW LOW VALUE CLAIMS.— 5 (1) IN GENERAL.—Section 1869(b) of the So- 6 cial Security Act (42 U.S.C. 1395ff(b)) is amended 7 by adding at the end the following new paragraph: 8 ‘‘(4) CONDUCT OF REVIEWS BY MEDICARE MAG- 9 ISTRATES.— 10 ‘‘(A) IN GENERAL.—The Secretary shall 11 establish, through regulations, a process under 12 which appealed claims may be reviewed by offi- 13 cials within the Office of Medicare Hearings 14 and Appeals to be known as Medicare mag- 15 istrates. 16 ‘‘(B) MEDICARE MAGISTRATE DEFINED.— 17 For purposes of this section, the term ‘Medicare 18 magistrate’ means an attorney who is licensed 19 VerDate Sep 11 2014 02:56 Dec 24, 2019 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3078.IS S3078 kjohnson on DSK79L0C42 with BILLS 3 •S 3078 IS by a State, has expertise in this title (including 1 regulations and policies promulgated there- 2 under), meets such other qualifications as the 3 Secretary shall require, and who performs re- 4 views and renders decisions in appeals described 5 in paragraph (1)(E)(i)(II). 6 ‘‘(C) REQUIREMENTS FOR REVIEWS CON- 7 DUCTED BY MAGISTRATES.—The provisions of 8 this subsection and subsection (d) that govern 9 hearings and decisions by administrative law 10 judges (including provisions related to reviews 11 of decisions by administrative law judges by the 12 Departmental Appeals Board of the Depart- 13 ment of Health and Human Services) shall 14 apply to reviews and decisions by Medicare 15 magistrates in the same manner and to the 16 same extent as such provisions apply to hear- 17 ings and decisions by an administrative law 18 judge. The Secretary may establish by regula- 19 tion such other requirements and procedures as 20 may be necessary so that reviews by Medicare 21 magistrates are resolved fairly, efficiently, and 22 expeditiously.’’. 23 (2) CONFORMING AMENDMENT.—Section 24 1869(b)(1)(A) of the Social Security Act (42 U.S.C. 25 VerDate Sep 11 2014 02:56 Dec 24, 2019 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3078.IS S3078 kjohnson on DSK79L0C42 with BILLS 4 •S 3078 IS 1395ff(b)(1)(A)), as amended by section 4(b)(3), is 1 amended by inserting ‘‘and paragraph (4)’’ after 2 ‘‘subject to subparagraphs (D), (E), and (H)’’. 3 (b) AMOUNT IN CONTROVERSY THRESHOLDS.— 4 (1) IN GENERAL.—Section 1869(b)(1)(E) of the 5 Social Security Act (42 U.S.C. 1395ff(b)(1)(E)) is 6 amended— 7 (A) by striking clause (i) and inserting the 8 following: 9 ‘‘(i) IN GENERAL.—Except as other- 10 wise provided in this section, subject to 11 clause (iii)— 12 ‘‘(I) a review by a Medicare mag- 13 istrate under paragraph (4), or a 14 hearing by an administrative law 15 judge under this subsection or sub- 16 section (d), shall not be available to 17 an individual if the amount in con- 18 troversy is less than $160; 19 ‘‘(II) a review by a Medicare 20 magistrate under paragraph (4) shall 21 be available to an individual if the 22 amount in controversy is equal to or 23 greater than the amount specified in 24 subclause (I) but less than the 25 VerDate Sep 11 2014 02:56 Dec 24, 2019 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3078.IS S3078 kjohnson on DSK79L0C42 with BILLS 5 •S 3078 IS amount specified in subclause (III); 1 and 2 ‘‘(III) a hearing by an adminis- 3 trative law judge shall be available to 4 an individual under this subsection or 5 subsection (d) if the amount in con- 6 troversy is equal to or greater than 7 $1,630.’’; 8 (B) in clause (iii)— 9 (i) by striking ‘‘For requests for hear- 10 ings’’ and inserting ‘‘For requests for 11 Medicare magistrate reviews, hearings,’’; 12 (ii) by striking ‘‘2004’’ and inserting 13 ‘‘2021’’; and 14 (iii) by striking ‘‘2003’’ and inserting 15 ‘‘2020’’; and 16 (C) by adding at the end the following new 17 clause: 18 ‘‘(iv) JUDICIAL REVIEW.—Judicial re- 19 view shall not be available to an individual 20 under this section if the amount in con- 21 troversy is less than the amount specified 22 in clause (i)(III) (as adjusted under clause 23 (iii)).’’. 24 (2) CONFORMING AMENDMENTS.— 25 VerDate Sep 11 2014 02:56 Dec 24, 2019 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3078.IS S3078 kjohnson on DSK79L0C42 with BILLS 6 •S 3078 IS (A) Section 1155 of the Social Security 1 Act (42 U.S.C. 1320c–4), as amended by sec- 2 tion 4(b)(1), is amended— 3 (i) in the second sentence, by striking 4 ‘‘$200 or more’’ and inserting ‘‘equal to or 5 greater than the amount specified in sec- 6 tion 1869(b)(1)(E)(i)(III)’’; 7 (ii) in the fourth sentence, by striking 8 ‘‘$2,000 or more’’ and inserting ‘‘equal to 9 or greater than the amount specified in 10 section 1869(b)(1)(E)(i)(III)’’; and 11 (iii) by inserting after the fourth sen- 12 tence the following new sentences: ‘‘Where 13 the amount in controversy is equal to or 14 greater than the amount specified in sub- 15 clause (I) of section 1869(b)(1)(E)(i) but 16 less than the amount specified in subclause 17 (III) of such section, such beneficiary shall 18 be entitled to a review by a Medicare mag- 19 istrate in accordance with procedures es- 20 tablished by the Secretary pursuant to sec- 21 tion 1869. The provisions of section 22 1869(b)(1)(E)(iii) shall apply with respect 23 to the dollar amounts referred to in this 24 section in the same manner as they apply 25 VerDate Sep 11 2014 02:56 Dec 24, 2019 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3078.IS S3078 kjohnson on DSK79L0C42 with BILLS 7 •S 3078 IS to the dollar amounts specified in section 1 1869(b)(1)(E)(i).’’. 2 (B) Section 1852(g)(5) of the Social Secu- 3 rity Act (42 U.S.C. 1395w–22(g)(5)), as 4 amended by section 4(b)(2), is amended— 5 (i) in the first sentence, by striking 6 ‘‘$100 or more’’ and inserting ‘‘equal to or 7 greater than the amount specified in sec- 8 tion 1869(b)(1)(E)(i)(III)’’; 9 (ii) in the second sentence, by striking 10 ‘‘$1,000 or more’’ and inserting ‘‘equal to 11 or greater than the amount specified in 12 section 1869(b)(1)(E)(i)(III)’’; 13 (iii) by inserting after the second sen- 14 tence the following new sentence: ‘‘If the 15 amount in controversy is equal to or great- 16 er than the amount specified in subclause 17 (I) of section 1869(b)(1)(E)(i) but less 18 than the amount specified in subclause 19 (III) of such section, such enrollee shall be 20 entitled to review by a Medicare magistrate 21 in accordance with procedures established 22 by the Secretary pursuant to section 23 1869.’’; and 24 VerDate Sep 11 2014 02:56 Dec 24, 2019 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3078.IS S3078 kjohnson on DSK79L0C42 with BILLS 8 •S 3078 IS (iv) in the last sentence, by striking 1 ‘‘the first 2 sentences of’’. 2 (C) Section 1876(c)(5)(B) of the Social 3 Security Act (42 U.S.C. 1395mm(c)(5)(B)), as 4 amended by section 4(b)(4), is amended— 5 (i) in the first sentence, by striking 6 ‘‘$100 or more’’ and inserting ‘‘equal to or 7 greater than the amount specified in sec- 8 tion 1869(b)(1)(E)(i)(III)’’; 9 (ii) in the second sentence, by striking 10 ‘‘$1,000 or more’’ and inserting ‘‘equal to 11 or greater than the amount specified in 12 section 1869(b)(1)(E)(i)(III)’’; 13 (iii) by inserting after the second sen- 14 tence the following new sentence: ‘‘If the 15 amount in controversy is equal to or great- 16 er than the amount specified in subclause 17 (I) of section 1869(b)(1)(E)(i) but less 18 than the amount specified in subclause 19 (III) of such section, such member shall be 20 entitled to review by a Medicare magistrate 21 in accordance with procedures established 22 by the Secretary pursuant to section 23 1869.’’; and 24 VerDate Sep 11 2014 02:56 Dec 24, 2019 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S3078.IS S3078 kjohnson on DSK79L0C42 with BILLS 9 •S 3078 IS (iv) in the fourth sentence, by striking 1 ‘‘the first 2 sentences of’’. 2 (c) CALCULATION OF AMOUNT IN CONTROVERSY FOR 3 THE AGGREGATION OF CLAIMS.—Section 4 1869(b)(1)(E)(ii) of the Social Security Act (42 U.S.C. 5 1395ff(b)(1)(E)(ii)) is amended— 6 (1) by redesignating subclauses (I) and (II) as 7 items (aa) and (bb), respectively, and indenting ap- 8 propriately; 9 (2) in the matter preceding item (aa), as so re- 10 designated, by striking ‘‘if the appeals involve’’ and 11 inserting the following: ‘‘if— 12 ‘‘(I) the appeals involve—’’; 13 (3) in item (bb), as so redesignated, by striking 14 the period at the end and inserting ‘‘; and’’; and 15 (4) by adding at the end the following new sub- 16 clause: 17 ‘‘(II) all claims that an individual 18 seeks to aggregate are included in the 19 same request for an aggregated ap- 20 peal.’’. 21 (d) EFFECTIVE DATE.—The amendments made by 22 this section shall take effect on January 1, 2021. 23 VerDate Sep 11 2014 02:56 Dec 24, 2019 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3078.IS S3078 kjohnson on DSK79L0C42 with BILLS 10 •S 3078 IS SEC. 3. REMANDING APPEALS TO THE REDETERMINATION 1 LEVEL WITH THE INTRODUCTION OF NEW 2 EVIDENCE. 3 (a) IN GENERAL.—Section 1869(b)(3) of the Social 4 Security Act (42 U.S.C. 1395ff(b)(3)) is amended by 5 striking ‘‘A provider of services’’ and all that follows 6 through the period and inserting the following new sub- 7 paragraphs: 8 ‘‘(A) REMAND UPON SUBMISSION OF NEW 9 EVIDENCE.— 10 ‘‘(i) IN GENERAL.—Except as pro- 11 vided in subparagraph (B), when a party 12 to an appeal, other than an individual enti- 13 tled to benefits under part A or enrolled 14 under part B, or both, or the Centers for 15 Medicare & Medicaid Services or its con- 16 tractors, introduces new evidence into the 17 administrative record at a reconsideration 18 conducted by a qualified independent con- 19 tractor under subsection (c) or at any sub- 20 sequent, higher level of appeal, the appeal 21 shall be remanded for a new redetermina- 22 tion under subsection (a)(3), and any prior 23 decisions (other than the initial determina- 24 tion made by the Secretary pursuant to 25 VerDate Sep 11 2014 02:56 Dec 24, 2019 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S3078.IS S3078 kjohnson on DSK79L0C42 with BILLS 11 •S 3078 IS subsection (a)(1)) on this appeal shall be 1 vacated. 2 ‘‘(ii) REQUIREMENTS.—For purposes 3 of clause (i), except to the extent otherwise 4 provided by the Secretary in regulations, 5 the provisions that apply to redetermina- 6 tions under subsection (a) and this sub- 7 section shall apply to redeterminations of 8 appeals that are remanded. 9 ‘‘(B) EXCEPTIONS.—The provisions of 10 subparagraph (A) shall not apply in instances 11 where an adjudicator determines that introduc- 12 tion of new evidence is justified due to— 13 ‘‘(i) a lower-level adjudicator’s inad- 14 vertent omission or erroneous decision to 15 omit such evidence from the administrative 16 record when that evidence was timely sub- 17 mitted to the lower-level adjudicator by a 18 party to the appeal; 19 ‘‘(ii) a decision by a lower-level adju- 20 dicator to issue an unfavorable decision 21 based on new or different grounds than 22 were the basis of a previous adjudication; 23 or 24 VerDate Sep 11 2014 02:56 Dec 24, 2019 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S3078.IS S3078 kjohnson on DSK79L0C42 with BILLS 12 •S 3078 IS ‘‘(iii) such other circumstances for 1 good cause as the Secretary may establish. 2 ‘‘(C) NO APPEAL.—A decision to remand 3 an appeal under this paragraph shall not be 4 subject to appeal.’’. 5 (b) EFFECTIVE DATE.—The amendments made by 6 this section shall take effect on January 1, 2020, and shall 7 apply to new appeals filed on or after such date. 8 SEC. 4. EXPEDITED ACCESS TO APPEALS. 9 (a) IN GENERAL.—Section 1869(b)(1) of the Social 10 Security Act (42 U.S.C. 1395ff(b)(1)) is amended by add- 11 ing at the end the following new subparagraph: 12 ‘‘(H) EXPEDITED ACCESS TO APPEALS FOR 13 DECISIONS ON THE RECORD.— 14 ‘‘(i) DECISION ON THE RECORD.—Not 15 later than 1 year after the date of the en- 16 actment of this subparagraph, the Sec- 17 retary shall establish by regulation and im- 18 plement a process authorizing an adminis- 19 trative law judge reviewing a decision pur- 20 suant to this subsection or subsection (d) 21 to issue a decision on the record in cases 22 where, based on the evidence of record, 23 there are no material issues of fact in dis- 24 pute and the administrative law judge de- 25 VerDate Sep 11 2014 02:56 Dec 24, 2019 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S3078.IS S3078 kjohnson on DSK79L0C42 with BILLS 13 •S 3078 IS termines that there is a binding authority 1 that controls the decision in the matter 2 under review. 3 ‘‘(ii) APPLICATION OF HEARING 4 RULES TO [Text truncated for display. 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